In the 1960s Duke Power had a problem. For years it had systematically discriminated against its black employees, refusing to promote them beyond manual labor. As views on race and discrimination changed Duke realized its policy was outdated and would soon be illegal under the coming Civil Rights Act. They recognized it was time to change and abandoned their overtly discriminatory policy. To smooth the process of promoting without racial qualifications, Duke instituted tests to identify suitable candidates for promotion. What Duke didn’t realize was that its good faith attempt to end unjustifiable discrimination would fall afoul the Supreme Court’s drive at social engineering and unleash a torrent of unlimited liability.

No legal doctrine has had a more significant impact on the future of our nation than the invention of Disparate Impact from the US Supreme Court’s decision in Griggs v. Duke Power (1971). Like a demonic conjuring, this ruling opened a portal to a universe of unrigorous legal reasoning and agenda-pushing, leading to a suite of stultifying regulations that has crippled our ability to correct course from the social and political morass in which we now find ourselves.

Given how entwined Disparate Impact has become in the structure of our laws we forget that it was just an invention, conjured as a ‘test’ by the Supreme Court. (The “test” of Disparate Impact was eventually codified in the Civil Rights Act but only in 1991. The original Act had no such test.) High courts sometimes craft tests as interpretive guidance for lower courts – especially where such interpretation is problematic or convoluted. After the Second World War the Supreme Court became more concerned with determining whether laws (Federal and State) contravened the Bill of Rights in a substantive sense, and where they found such contravention they struck them down. Since these findings invariably vitiated the legislature’s prerogative, the Court began devising “tests” to rationalize their interference. Whether such judicial interference is a good or bad thing is not the aim here (it’s a double-edged sword that is also preventing California from banning satire).

In this case, the Disparate Impact test was created to determine whether discrimination had occurred within the meaning of the Civil Rights Act of 1964. The fact that a test was needed suggests Congress passed the law without a full examination of its implications. It is no coincidence that this sort of legislating-by-exigency smacks of siege-mentality desperation if not overt patronage.

 

Since mine own doors refuse to entertain me, I’ll knock elsewhere

What is Disparate Impact and why has it become so odious? When a law adversely impacts a protected class of people in a disproportionate manner, compared to the unprotected, it is said to have a disparate impact. How “disproportionate” can that impact be? Courts have arbitrarily determined that an impact of 80% or less constitutes prima facie discrimination. So if you’re hiring less than 4 blacks for every 5 whites (from similarly sized applicant pools), you’re in trouble.

Now, to be fair, prior to 1964 Duke Power had used explicitly discriminatory criteria to prevent blacks from promotion. But both the trial court and the court of appeal affirmed that Duke had abandoned those practices and averred that no discriminatory purpose was at work behind the new tests. Duke’s reformed attitude wasn’t good enough for the Supreme Court though.

The Court, under Chief Justice Warren Burger, was perhaps the most liberal court in existence. It included such left-wing luminaries as Justice William Douglas (hastily appointed by F.D.R. as the second youngest-ever justice after his failed court-packing attempt). Douglas had supported individual rights against the State early in his career, but his support of Maoist China had now made him a target of impeachment threats by House Minority leader Gerald Ford. Justice Blackmun, another uber-liberal, was a turncoat appointed by Nixon (Thurgood Marshall had at least been appointed by a Democrat). Even Burger, a Republican, skewed hard to the left by the 1970s.

With the high-handed tone of moral superiority – typical of a Minnesota liberal – Burger delivered the opinion of a unanimous court. In fact his willingness to politicize the Court was apparent from his first invective:

“The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to “freeze” the status quo of prior discriminatory employment practices.”

This is legal sophistry at its worst. He constructs the straw-man of “neutral intention” and then knocks him down with a non sequitur denunciation of ‘freezing the status quo’. But no party ever argued that the status quo ought to be frozen, and a discriminatory test or practice – neutral in intent – can be maintained if it meets any of the exemptions Congress included. Freezing the status quo is an as irrelevant as it is obfuscatory.

The Act contains so many exemptions that allow for discrimination that his argument is almost moot. There are exemptions for national security; exemptions for members of the Communist Party; and most importantly exemptions for the unqualified:

SEC. 2000e-2. [Section 703]

Notwithstanding any other provision of this subchapter, (1) it shall not be an unlawful employment practice for an employer to hire… on the basis of his religion, sex, or national origin in those certain instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise [emphasis added].

But Burger was intent on leaving his mark on the nation so he squared the circle. Inserting himself into the legislature’s mouth he declared: “The Act proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation” and then reached for the Aesopian Fox & Stork parable to make his case.

The very heart of his argument is atrophied. Intentional discrimination (of protected classes) might be illegal, but discrimination in operation certainly is permitted in many cases. Moreover the parabolic reference is uncanny given its literal implications. He would seem to imply that policies affecting people of biologically different abilities ought to be deemed discriminatory regardless of how they work in operation. In other words, if the Fox can’t drink from the tall jug (as the Stork does) then providing him with a bowl is insufficient, he gets a jug too and society be damned with the consequences!

 

Cry Havoc and Let Slip the Dogs of Law

When I was a law student one of my professors referred to the Common Law as Dog Law. When you yell at your dog for sitting on the couch you can’t really blame him for breaking your rules – he didn’t know the couch was off limits until you yelled at him. While somewhat obtuse, it has a ring of truth: sometimes a Common Law judge will create a new precedent and effectively sanction behavior that was hitherto permitted. Griggs was Dog Law par excellence.

This was most outrageously demonstrated in the Court’s re-evaluation of the facts—something that high courts generally avoid. (A good rule of thumb is that three-quarters of appeals turn on errors of fact made by the trial court, while the remaining quarter turn on errors made in the application of the law. A fortiori for high court appeals.) In Griggs it re-examined Duke Power’s use of general intelligence tests despite both trial and the Appeals courts having rejected the plaintiffs’ claims that those tests were either intentionally or “operationally” discriminatory. Under the Civil Rights Act a workplace test must be “reasonably related” to the performance of the job in question. This is a matter of fact for the trial court to determine, not the nation’s highest court. But Burger, aroused by judicial activism, tossed this convention aside:

“On the record before us, neither the high school completion requirement nor the general intelligence test is shown to bear a demonstrable relationship to successful performance of the jobs for which it was used. Both were adopted, as the Court of Appeals noted, without meaningful study of their relationship to job performance ability. Rather, a vice-president of the Company testified, the requirements were instituted on the Company’s judgment that they generally would improve the overall quality of the workforce.”

The headline reasoning given is that no “meaningful study” was conducted, leaving open the question of who (i.e. which expert) decides what “meaningful” means and how they ought to determine it. Generally courts avoid travelling along the path where experts tread, but Burger shreds this notion by creating the Disparate Impact test as a de facto law that then requires expert involvement. The finding of discrimination now rests upon a judge’s determination of “meaningful”—a finding that heralds a new cottage industry of highly-paid intermediaries. The portal opened, its door shattered, the incentives were now aligned for self-interested parties to squeeze through.

Since disparity is the ubiquitous—perhaps fundamental—condition of the Universe, Griggs set in motion a negative feedback loop where employers, paranoid of liability arising from any difference, simply opted not to notice performance or test for it. Trial lawyers may have been the first to pass through the portal but employers soon realized there was an even more powerful demon: bad PR. Grifting employees could win simply by bringing accusations of discrimination, which of course they did. For most employers this meant two things: (1) avoid hiring people in protected categories; and (2) avoid any tests or measures of competence as a means of performance evaluation, especially for promotion. It’s hard to imagine a worse lose-lose for society.

The rational response to Griggs might have been for employers to introduce tests that were more targeted and could be justified in court. But that never occurred because testing is both resource- and time-intensive. No company wants to take such a risk only to have a judge declare their efforts were not ‘meaningful’ long after millions had been spent on implementation. Off the couch, dog!

 

The tail now wags the dog

For a time society shrugged. “The really important jobs will still have tests”, normies comforted themselves. And it did take a while for the testing infrastructure to decline into obsolescence. But here we are today where the FAA now mandates “personality tests” for air traffic controllers to avoid causing a disparate impact on minority applicants—even though this type of discrimination is explicitly permitted by law. Social engineering can now justify the a priori abandonment of standards and then be excused with the (false) presumption that raising them would be illegal under judge-made law.

Progressives now tasted blood. Infected by mission creep—the palsy of all moral crusades—they pushed the boundaries of Disparate Impact long after their victory. In 2005 the Supreme Court expanded Disparate Impact to age discrimination under the relevant statute. And in 2015 it ruled that Disparate Impact was a sufficient standard to prove discrimination under the Fair Housing Act. Moreover, the acceptance of this standard induced dozens of states to adopt similar provisions in many areas of state law. Disparate Impact now enlarged the portal sufficiently for the unholiest of unholies, Substantive Equality (that is the equality of outcomes) to attempt a pass.

Substantive Equality is the most meretricious of lies. It is a perversion of the most universal truth – the Second Law of Thermodynamics – a masquerade of Late Imperial abundance performed with the plangency of motherly affectation. No sensible person thinks that equality of outcomes is feasible let alone desirable. Its provenance is the false abundance mindset of the effete, but its target quickly becomes everybody else.

One problem with Substantive Equality, though, is that it’s manifestly unconstitutional. Even the drafters of the Civil Rights Act (as amended in 1991) understood this:

(2) Nothing in this subsection shall be construed to-

(D) authorize or permit the denial to any person of the due process of law required by the Constitution.

This is a strange provision in some ways since any act of Congress is subject to constitutional muster under things like due process. Yet the law’s drafters felt it sufficiently important to explicitly remind the public that it is not above the Constitution. The Court even said as much in Washington v. Davis (1979). The fact that this didn’t stop states and cities from enacting a myriad of anti-discrimination laws, embedded with Disparate Impact, showed that the Substantive Equality mindset had taken over.

Progressives know that Substantive Equality isn’t workable. For every “remedy” to discrimination there will always be another group that will suffer reverse discrimination. The goal is thus to mobilize politically up-and-coming groups that appear discriminated against, and then direct the reciprocal discrimination against politically marginalized groups.

Lately the Court has pushed back against the tide. In Ricci v. DiStefano (2009) the Court ruled discrimination against non-blacks by the New Haven Fire Department was illegal. But unfortunately the Court took the more restrained approach, saying the Fire Department hadn’t used the proper tests, instead of ruling it was an unconstitutional violation of due process. But a final confrontation is looming.

Employment is a provision of a livelihood to the employed. To most it is the ultimate resource. Thus the Civil Rights Act must be understood as a resource-reallocation exercise. Capitalist employers, however, seek to optimize their opportunity set by creating a virtually infinite number of dimensions upon which to discriminate and attain that optimum. When you introduce a legal requirement to avoid disparate impacts (let alone produce equal outcomes) creating an environment where no one else is discriminated against becomes unavoidable. Thus both Disparate Impact and Substantive Equality foreclose ever reaching that optimum.

This is the worst of all worlds. Employers now must make decisions based on trade-offs in a negative-sum game. The winning group is the one that can best game the system and discrimination becomes entrenched on the basis of capricious factors like “who controls HR” and “who has the most social media clout.”

 

Substantive Equality: The Final Frontier

What devils are in store for us with Substantive Equality? Here the leftward slant of Wikipedia is revealingly useful for their clear-throated advocacy of lunacy.

The first is redistribution, not just of private property, but of social status. The former type of redistribution is difficult to do without mass uprisings, but the latter is an easier subterfuge. Affirmative Action is one example of this and even with its high court defeat the Left has simply ignored this ruling and conceals redistribution in an endless game of policy wack-a-mole.

The second is recognition, that is the creation and imposition of new social classes that will prepare the majority for minority rule. To pave the way for this inversion the public must be gaslit into believing falsehoods until they become numb. Witness the COVID’s Disinformation Governance Board as a trial balloon for this.

The third is participation, that is the creation of positive duties on the rest of society to ensure that state-sponsored client groups are protected at your cost by amplifying their political power beyond anything rational. The concomitant distortion of representative democracy is every bit as frightening as it sounds.

Finally is transformation. Progressives know that discrimination (that is the act of choice) cannot be eliminated through equal treatment. Only by coercing thought itself can it be vanquished. In this vision everything must be transformed in favor of the new agenda, in a sort of socialist Genesis Project:

McCoy: …what if this thing were used where life already exists?

Spock: It would destroy such life in favor of its new matrix.

McCoy: Its “new matrix”? Do you have any idea what you’re saying?

The most pernicious aspect of this agenda is the subjugation of causation. Notice that nowhere in the analysis of Disparate Impact does anyone ask why outcomes differ. As Thomas Sowell argued in Discrimination and Disparities, differing outcomes are usually not the product of discrimination, even if innate differences are the product of biology. Thus Substantive Equality is attempting to “remedy” a problem whose cause is something totally different. This sounds more like the antonym of “remedy.”

Disparate Impact’s principal contribution to legal theory has been to demote (if not obviate) the role of causation in considerations of liability. Causation is then replaced by its much less rigorous (and much more politically tractable) cousin, correlation, and politically-driven judges have become slap-happy applying this standard in their sotto voce quest to redistribute national income to preferred groups.
As long as causation is sidelined in favor of loosely-correlated “impact,” and as long as redistribution under the aegis of Disparate Impact is meted out by political appointees, this travesty will go on fomenting a system of judicial arbitrariness that the Founders intended to prevent, entangling the taxpayer with unlimited economic and social liabilities that will be impossible to reverse.

A.J.R. Klopp is a former attorney and author of the newly published The Toll of Fortune: An Indo-European Origin Saga. He Tweets @ThirteenFathers.