After 50+ years, Trump Bans Disparate Impact Fantasy

But an even better solution than the Trump Administration's is to recognize social science learning about racial gaps in performance.

From the Washington Post news section:

Justice Dept. kills long-time tool used to prove racial discrimination

The decades-old provision of civil rights law allows statistical disparities to be used as proof of racial discrimination.

December 9, 2025 at 5:56 p.m.

By Laura Meckler

After years of conservative complaints, the Justice Department moved Tuesday to kill a decades-old provision of civil rights law that allows statistical disparities to be used as proof of racial discrimination.

Washington Post articles tend not to be as good quality as New York Times articles. This one is particularly hand-wavey.

The disparate or adverse impact rule created by the Supreme Court’s 1971 Griggs v. Duke Power case did not focus on “proof of racial discrimination,” but instead, to be precise, placed the legal burden of proof on the employer for justifying the “business necessity” (a strict hurdle) of a hiring practice.

This didn’t make it illegal per se to use IQ-like tests, just risky and expensive. For example, at the marketing research company where I primarily worked in the 1980s-1990s, our biggest client, Procter & Gamble, had gone to considerable trouble and expense to hire consultants to document persuasively to the EEOC that P&G had a business necessity of continuing to use its famous hiring exam.

In contrast, our start-up firm didn’t attempt to have validated our decade-old hiring exam, which had been Vice-Chairman and Professor Gerald Eskin’s Quantitative Methods in Marketing Research 311 (or whatever) final exam at U. of Iowa. It was a brutal test that took me an entire afternoon to finish when I applied for a job in 1982. But the next day, having gotten my scored test results, the CEO of the firm called me up to come in for an entire day of interviews.

Compared to P&G, however, when the EEOC came saber-rattling a decade later, we were penny wise and pound foolish and didn’t pay to try to have our successful test validated. The quality of our hires fell off once we stopped using Dr. Eskin’s quite difficult exam.

Conservatives have long argued that proving discrimination should require proof that someone intended to treat people differently. And they say that when people are being judged by data, they feel pressure to make decisions based on racial quotas. In that way, the Trump administration argues, a policy meant to fight discrimination is actually fostering it.

“This Department of Justice is eliminating its regulations that for far too long required recipients of federal funding to make decisions based on race,” Attorney General Pam Bondi said in a statement.

Supporters of disparate impact analysis say it is a critical tool because finding “smoking gun” evidence to prove someone intended to discriminate is difficult. And even if the intention wasn’t to discriminate, advocates say institutions should be held accountable for discriminatory effects.

The defendant in Griggs, Duke Power, was, I believe, a regulated monopoly in North Carolina that adopted a number of new hiring procedures the day after the famous Civil Rights Act was passed in 1964. It was not unreasonable at the time of the lawsuit for the feds to assume that this noncompetitive firm in a Jim Crow state was not wholly sincere about wanting to give black workers an even break.

So, the Supreme Court and the federal bureaucracy came up with the idea that the benchmark would be that if blacks weren’t performing as well as whites in their careers, there would be some ‘splainin’ to do

But most firms, unlike Duke Power, are in competitive markets and non-Jim Crow markets and thus have strong incentives to hire the most profit optimizing workers.

And times change. Once American businesses in the South were confident that the KKK wasn’t going to burn them down if they gave blacks a fair go, the logic of the marketplace dictated that racial discrimination for the sake of discrimination was obsolete and self-destructive to profits.

However, the federal government had geared up to fight a long twilight war against racism, only to find that Southern corporations were surrendering right and left. Southern firms were enthusiastic instead about leaving behind the South’s mildew and moonshine past and joining a modern major league America where Atlanta would be represented by slugger Hank Aaron and there’d be no nonsense about visiting Willie Mays not being allowed to sleep in the best hotel in town.

So, it mostly turned out that the feds didn’t need hard-core anti-discrimination techniques to get businesses to stop doing old Jim Crow nonsense that was wasting their money.

Instead, the problem quickly because that fairly, honestly, and without prejudice, there just were a lot of jobs, in contrast to sports, where blacks didn’t perform as well as whites on average. So the basic idea of disparate impact — that blacks and whites would achieve equally — was obviously nonsensical.

To my mind, the big problem with the last 50+ years of disparate impact law is that it denies learning from the advance of social science.

Paywall here.