Disparate Impact


Accreditation Overreach Part 2: Forcing Affirmative Action on Colleges and Universities

Racial Impact Statement Laws in New Jersey and Elsewhere

March 20, 2017

On February 27, 2017, the New Jersey Assembly Law and Public Safety Committee reported favorably on Senate Bill No. 677 (with amendments). The original bill, passed by the New Jersey Senate in June 2016, required racial and ethnic impact statements for any legislative measure that affects pretrial detention, sentencing, probation, or parole policies concerning adults or children. The version recently reported out of committee somewhat expanded these requirements.

Racial impact statement laws have previously been enacted in Connecticut, Iowa, and Oregon, and similar legislation has recently been introduced by lawmakers in Arkansas, Florida, Mississippi, and Wisconsin. [Read More]


Does Title II of the Civil Rights Act prohibit racially disparate impacts?

Joshua Thompson March 08, 2017

Our civil rights laws are designed to prohibit discrimination on the basis of certain traits. For example, Title VII of the Civil Rights Act of 1964 prohibits racial discrimination in employment. Title VI of that same Act prohibits any entity that receives federal funds from discriminating on the basis of race. And Title IX of the Education Amendments of 1972 prohibits discrimination on the basis of sex from any entity that receives federal funds. But what does it mean that these laws prohibit “discrimination?” [Read More]


Obama signing legislation

Things the President Doesn’t Know About Racial Disparities

August 05, 2016

On July 7, 2016, in a speech on police shootings of black men by police in Louisiana and Minnesota, President Obama discussed the contribution of racial disparities in the criminal justice system to African American mistrust of law enforcement. Statistics the President cited included that African Americans are 30 percent more likely to be pulled over than whites and African Americans and Hispanics who are pulled over are three times as likely to be searched as whites; last year African Americans were twice as likely to be shot by police or arrested as whites; African Americans who are arrested are 75 percent more likely than whites to be charged with sentences carrying mandatory minimums; while African Americans and Hispanics make up 30 percent of the general population, they make up over half of the incarcerated population.  [Read More]



Is the Disparate Impact Doctrine Unconstitutionally Vague?

May 05, 2016

The Fourth Annual Executive Branch Review Conference will be held on Tuesday, May 17, 2016, at The Mayflower Hotel in Washington, DC. The theme of the conference is "Law & Innovation." Register on site, there is no cost to attend.

Attorney James Scanlan will be speaking on our panel entitled "Disparate Impact: Reducing Innovation in the Workplace?" Catch up on the issue by reading Mr. Scanlan's extensive background on the topic and the practical and Constitutional issues that surround disparate impact doctrine:

Due process requires that a statute apprise a person of reasonable intelligence of the nature of prohibited conduct. Otherwise the statute is unconstitutionally vague. The void for vagueness doctrine, while principally applied to criminal statutes and those affecting speech, is not limited to those contexts.  But even if application to other contexts is limited to extraordinary situations, the doctrine may have a role with respect to statutes imposing liability for a practice’s disparate impact. For, in that context, there exist situations where statutes do not apprise person of far above average intelligence of the nature of prohibited conduct and do not even apprise government agencies enforcing the statutes of the nature of the prohibited conduct. Remarkable consequences of such situations include longstanding patterns where the government encourages entities covered by civil rights laws to engage in conduct that increases the chances that the government will sue them for discrimination.    

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