Don’t Panic: Disparate Impact Discrimination Theory Isn’t Going Away
Summary
Several BCGi members have expressed concern over recent reporting about the current White House administration’s efforts to “roll back” anti-discrimination rules in secret at the eleventh hour. A small number of federal court cases over the years have noted that Title VI was intended to align with the Equal Protection Clause of the U.S. Constitution, which in turn has been interpreted to require evidence of intentional discrimination. The current administration has erroneously read these court decisions to require federal agencies to strip any and all references to disparate impact theories of discrimination from their Title VI regulations and that is what the DOJ is seeking to do. However, at this time it is limited to the DOJ and this is separate and distinct from regulations regarding federal contractors (grants and other forms of financial assistance are generally not considered “contracts” for the purpose of enforcing the EEO/AA requirements of Executive Order 11246). If the new administration determines that these regulatory changes (should they go into effect) do in fact fall in an exemption from public notice and comment requirements, they can rescind the revised regulations the same way, i.e., relatively quickly.
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