In the last days of the Trump administration, the Department of Justice has proposed a change to its enforcement of discrimination claims under Title VI of the Civil Rights Act. Title VI prohibits organizations that receive federal funding from discrimination based on race, color or national origin in employment, education, healthcare and other services.
The Justice Department proposes to eliminate enforcement actions in cases of “disparate impact” discrimination. Disparate impact discrimination occurs when a seemingly neutral policy or practice has an adverse impact on a protected group. It is not necessary to prove that the policy or practice is intentionally discriminatory in order for it to be found illegal.
This rule would significantly change enforcement by the Justice Department. According to civil rights groups, claims of disparate impact discrimination make up the majority of discrimination litigation. This is because businesses and other organizations generally take care to ensure that their policies and practices do not appear to be intentionally discriminatory.
According to a draft of the proposal obtained by The New York Times, the Justice Department proposes to eliminate language in its regulations pertaining to policies and practices having a discriminatory effect, as opposed to an explicitly discriminatory purpose. The Justice Department argues that disparate impact claims address “a vastly broader scope of conduct” than Congress meant to prohibit in Title VI. This is a controversial statement.
Interestingly, the Justice Department submitted the change to the White House Office of Management and Budget rather than proposing rule change through the Administrative Procedures Act, as is typically required. This could open the proposed change up for challenge.
If the proposal is approved by the White House, as is expected, litigation is virtually guaranteed. The U.S. Supreme Court upheld the concept of disparate impact discrimination as recently as 2015.
If approved, the change would be the first major amendment to Justice Department definitions of discrimination under Title VI since 1973.