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Discrimination Law

Disparate Impact Analysis - Event Audio/Video

Second Annual Executive Branch Review Conference
Gail Heriot, Peter N. Kirsanow, Theodore M. Shaw, Adam Liptak May 14, 2014

Disparate Impact Analysis - Event Audio/VideoUnder disparate impact analysis, certain practices might be considered discriminatory if they have a disproportionate adverse impact on a protected class of persons, even without discriminatory intent. A number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment, now including education, housing, government contracting, and auto financing, to name a few. Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications might be.

A key element of the Practice Groups' Executive Branch Review project is our annual conference. This year's Executive Branch Review Conference took place on May 7th at the Mayflower Hotel in Washington, D.C.

Disparate Impact Analysis
11:00 a.m. – 12:15 p.m.
Promenade Ballroom

  • Hon. Gail Heriot, Professor of Law, University of San Diego School of Law and Commissioner, U.S. Commission on Civil Rights
  • Hon. Peter N. Kirsanow, Benesch, Friedlander, Coplan & Aronoff LLP and Commissioner, U.S. Commission on Civil Rights and former Member, National Labor Relations Board
  • Prof. Theodore M. Shaw, Professor of Professional Practice in Law, Columbia University School of Law
  • Moderator: Mr. Adam Liptak, Supreme Court Correspondent, The New York Times

Mayflower Hotel
Washington, DC

Employment Non-Discrimination Act - Podcast

Religious Liberties Practice Group Podcast
David E. Bernstein, William N. Eskridge, Jr. February 21, 2014

Prop 8 flagsA bill to enact the proposed Employment Non-Discrimination Act ("ENDA") was introduced into the 113th Congress and approved by the Senate by a 64-32 vote. The Act would prohibit discrimination in hiring and employment on the basis of sexual orientation or gender identity by employers with at least 15 employees. Non-profit membership clubs and organizations that are solely religious are exempted, but religiously affiliated organizations (such as hospitals and schools) are not.

Proponents and opponents disagree about whether sexual orientation and gender identity discrimination is widespread and a serious problem. Proponents point, for example, to a field experiment in which job applications with a fictitious resumé including membership in a gay organization in college received substantially fewer invitations for interviews than did applications with a fictitious resumé identical except for the membership. Opponents note studies showing that gays have average or above-average incomes and conclude that discrimination does not seem to have impaired their earning potential.

There is also disagreement about the impact ENDA would have on people of faith. Proponents note that the religious exemptions of ENDA track those of other federal anti-discrimination laws. Opponents point out that disapproval of homosexual acts is a fundamental tenet of Christianity, Judaism, and Islam, as well as of many other faiths, and that ENDA would be the first American federal law to outlaw exercise of a mainstream belief of our major religions.

Featuring:

  • Prof. David E. Bernstein, George Mason University Foundation Professor of Law, George Mason University School of Law
  • Prof. William N. Eskridge, Jr., John A. Garver Professor of Jurisprudence, Yale Law School

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School Discipline and the Expansion of Disparate Impact - Podcast

Civil Rights Practice Group Podcast
Roger B. Clegg, Hans Bader, Dean A. Reuter February 05, 2014

school lockersOn January 8, 2014, the Department of Justice Civil Rights Division and the Department of Education Office for Civil Rights jointly released a memo urging public schools to revisit discipline policies that they assert have a disproportionate effect on minority students. “Schools ... violate Federal law when they evenhandedly implement facially neutral policies and practices that, although not adopted with the intent to discriminate, nonetheless have an unjustified effect of discriminating against students on the basis of race," read the memo. "Examples of policies that can raise disparate impact concerns include policies that impose mandatory suspension, expulsion, or citation (e.g., ticketing or other fines or summonses) upon any student who commits a specified offense — such as being tardy to class, being in possession of a cellular phone, being found insubordinate, acting out, or not wearing the proper school uniform.” Our experts discussed the expansion of disparate impact analysis into school discipline. Materials referenced during this podcast are available on this web page under "Related Links."

Featuring:

  • Hans Bader, Senior Attorney and Counsel for Special Projects, Competitive Enterprise Institute
  • Roger Clegg, President and General Counsel, Center for Equal Opportunity
  • Moderator: Dean Reuter, Vice President and Director of Practice Groups, The Federalist Society

[Listen now!]

Use of Disparate Impact Analysis - Event Audio/Video

2013 National Lawyers Convention
Reva Siegel, William R. Yeomans, Roger B. Clegg, Kenneth L. Marcus, William Kuntz November 22, 2013

Use of Disparate Impact Analysis - Event Audio/VideoA number of commentators have noted an expansion of the use of disparate impact analysis in the federal government to areas other than employment.  Examples of increased application are often cited in education, government contracting, and auto financing, to name a few.  Our panel of experts will discuss whether or not there has been such an increase, and, if so, what the ramifications may be.

The Civil Rights Practice Group hosted this panel on "Use of Disparate Impact Analysis" on Friday, November 15, during the 2013 National Lawyers Convention.

Civil Rights: Use of Disparate Impact Analysis
12:00 noon – 2:00 p.m.

Chinese Room

  • Prof. Reva Siegel, Nicholas deB. Katzenbach Professor of Law, Yale Law School
  • Prof. William R. Yeomans, Fellow in Law and Government, American University Washington College of Law
  • Mr. Roger Clegg, President and General Counsel, Center for Equal Opportunity
  • Hon. Kenneth L. Marcus, President, the Louis D. Brandeis Center for Human Rights
  • Moderator: Hon. William F. Kuntz, II, United States District Court, Eastern District of New York

Mayflower Hotel
Washington, DC

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Anti-discrimination and Individual Liberties: Elane Photography v. Willock - Podcast

Civil Rights and Religious Liberties Practice Groups Podcast
Ilya Shapiro, Christian Corrigan September 11, 2013

Anti-discrimination and Individual Liberties: Elane Photography v. Willock - PodcastOn August 22, the New Mexico Supreme Court ruled in Elane Photography v. Willock that the First Amendment doesn't protect a photographer's right to decline to take pictures of a same-sex wedding ceremony against the requirements of the state's Human Rights Act, which forbids discriminating against people on the basis of sexual orientation. The case perfectly illustrates the tension between the ideals of non-discrimination and individual freedom. Join us as our expert discusses both sides of the issue.

Featuring:

  • Ilya Shapiro, Senior Fellow in Constitutional Studies, Cato Institute
  • Moderator: Christian Corrigan, Director of Publications, The Federalist Society

[Listen now!]