5 ms·

Title 7 Disparate Impact Liability Makes Almost Everything Presumptively Illegal

30 points by like_any_other 2mo ago

atomicnumber3 2mo ago
I struggle a lot with the potentially nonzero overlap between a) "just legislate that being racist/sexist to people is illegal, then have judges interpret" (which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism), and b) "but also don't simply make everything illegal because then abusers can selectively enforce the law to punish groups they dislike". Tough. Gotta try, though.
- EGreg 2mo ago
  I think a) seems very quixotic and causes more problems than it solves. Instead, I would say that discrimination should probably only be illegal in places where there aren’t enough of the thing (jobs, etc). For example, what about x-only clubs, or ladies’ nights or gyms or etc.
  - xboxnolifes 2mo ago
    > discrimination should probably only be illegal in places where there aren’t enough of the thing That's every job everywhere as far as I can tell. There's fewer jobs that people want than people who want them.
    - IAmBroom 2mo ago
      You're literally repeating the part you chose not to quote. I'll additionally add in summation, there's fewer jobs that people want than people who want them.
- ryandrake 2mo ago
  Evaluating a policy based on Disparate Impact is important because it gets rid of the truck-sized plausible deniability of "Well, see, our policies aren't technically or intentionally racist, even though the end result is clearly that racial minorities are excluded/avoided/attacked/whatever. But since we don't specifically and consciously mention race, then we're in the clear!" It's kind of a corollary to "The Purpose Of A System Is What It Does": The purpose of a policy is who it impacts. Disparate Impact recognizes this.
  - braiamp 2mo ago
    I would say that some systems are not designed to be discriminatory against a group, but since the designer blind spot for the problem might still play a part. Systems designed to be "neutral" has to be evaluated against a ideal neutral. If we find discrepancies then the system is fixed until it's as close to neutral as possible. By ideal neutral is that their outcome aren't that disparate considering the supposed goal of the system: access to X resource, ability to accomplish X, etc.
  - JackFr 2mo ago
    Imagine a city where the schools woefully underserve minority students. Despite equal budgets etc. there is a persistent gap, probably due to income gaps but that’s not the point. Within the education system there is no one institutional factor to blame. Now imagine a civil service exam in that same city, entirely race neutral but resulting in a disparity because it tests general skills. The test is de jure racist when all it does is expose the poor education system. Because the education is so poor, the only remediation is to hire unqualified people. So you end up with a deficient civil service in the name of fairness. There are other ways to examine whether a test or policy is racist.
    - deleted 2mo ago
      [deleted]
    - usernomdeguerre 2mo ago
      >Because the education is so poor, the only remediation is to hire unqualified people. So you end up with a deficient civil service in the name of fairness. I think there's more solutions to that, no? The poor school might make more poor students, but statistically it probably also has some good ones too. So maybe given a basket of roughly equal candidates to a position, one can treat those with a diverse background as having a benefit, rather than looking at their school background and assuming they're unqualified or setting them aside. If your candidates don't meet the bar then fine, but i'm not convinced that's the default case in life.
      - 2mo ago
- rayiner 2mo ago
  > which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism Can you give examples of how you think there are “inventive” ways people are being racist/sexist?
  - tbrownaw 2mo ago
    The usual argument I see is that group differences in outcome exist, therefore there necessarily must be discrimination somewhere causing those differences. That this discrimination can't be found is proof of how inventive the people doing the discriminating are. Since these practices are inferred from their effects rather than directly observed, there's no list.
- tbrownaw 2mo ago
  > a) "just legislate that being racist/sexist to people is illegal, then have judges interpret" (which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism), The current rules are that [in specific listed contexts] you are not allowed to treat individuals differently on the basis of [explicit list of characteristics]. That's essentially your (a), except it's not up to interpretation. Pretending that it is up to interpretation is how you get things like what the article is about (in that case by measuring group statistics rather than comparing individual experiences).
profsummergig 2mo ago
Obama forced something similar on schools: https://www.ed.gov/laws-and-policy/civil-rights-laws/race-color-and-national-origin-discrimination/dear-colleague-letter-nondiscriminatory-administration-of-school-discipline-rescinded https://www.ed.gov/laws-and-policy/civil-rights-laws/race-co... The policy warned schools that racial disparities in punishments could trigger federal civil rights investigations under a "disparate impact" standard. Ergo, presumably, if a school had a single purple student. And that purple student was punished for something. Then the entire school had to also be punished for the thing. To not fall afoul of the law. (Or maybe I'm just too autistic to have a nuanced take.) (Trump rescinded it.)
- deleted 2mo ago
  [deleted]
- MithrilTuxedo 2mo ago
  >Or maybe I'm just too autistic to have a nuanced take. Who is doing the presuming? That sounds like a bad-faith interpretation. It's bad math. You can't expect statistics to be applied at that scale, and I think courts would have agreed if anyone had tried.
- wredcoll 2mo ago
  > Ergo, presumably, if a school had a single purple student. And that purple student was punished for something. Then the entire school had to also be punished for the thing. To not fall afoul of the law. (Or maybe I'm just too autistic to have a nuanced take.) Then why even post? You just made something up and then spewed it out.
- IAmBroom 2mo ago
  If your take on ANYTHING is that Obama was a racist, and Trump was anti-racist, everything that follows is ignorable.
userbinator 2mo ago
Unfortunately the only way to have everyone "equal", seems to be to make everyone equally stupid. This idea has been explored in fiction, e.g. Harrison Bergeron.
yieldcrv 2mo ago
Our industry should be going after the ATS system use and harmonizing its implementation Should be going after the camera on policy Should be going after leetcoding, take home interviews, and every subjective metric that isnt able to be verified in its uniform apllicability across candidates and according to this paper, even if it was uniform lol
tbrownaw 2mo ago
I don't see a publish date on this? As I understand it, there have been recent shifts away from what's described and towards the relevant government agencies wanting more direct evidence of individuals being treated differently.
- polski-g 2mo ago
  Easily undone by the next administration.
  - tbrownaw 2mo ago
    At least some were the result of court cases, so maybe not that trivial to reverse.
- newsomix9xl 2mo ago
  I saw a 2025 copyright at the bottom.
  - tbrownaw 2mo ago
    Sure, but that looks like a page footer. If I go to the site home it's the same, so it's probably the last time the site was a whole was updated.
- ButlerianJihad 2mo ago
  web.archive.org first found it on 9/11/2025 https://web.archive.org/web/20250000000000*/https://www.nyujll.com/volume-14/title-vii-disparate-impact-liability-makes-almost-everything-presumptively-illegal https://web.archive.org/web/20250000000000*/https://www.nyuj...
rho138 2mo ago
[flagged]
lmaoguy 2mo ago
Imagine being such a statist that you agree with outlawing wrong think. Slippery slope is not a fallacy.

I struggle a lot with the potentially nonzero overlap between a) "just legislate that being racist/sexist to people is illegal, then have judges interpret" (which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism), and b) "but also don't simply make everything illegal because then abusers can selectively enforce the law to punish groups they dislike". Tough. Gotta try, though.

EGreg 2mo ago
I think a) seems very quixotic and causes more problems than it solves. Instead, I would say that discrimination should probably only be illegal in places where there aren’t enough of the thing (jobs, etc). For example, what about x-only clubs, or ladies’ nights or gyms or etc.
- xboxnolifes 2mo ago
  > discrimination should probably only be illegal in places where there aren’t enough of the thing That's every job everywhere as far as I can tell. There's fewer jobs that people want than people who want them.
  - IAmBroom 2mo ago
    You're literally repeating the part you chose not to quote. I'll additionally add in summation, there's fewer jobs that people want than people who want them.
ryandrake 2mo ago
Evaluating a policy based on Disparate Impact is important because it gets rid of the truck-sized plausible deniability of "Well, see, our policies aren't technically or intentionally racist, even though the end result is clearly that racial minorities are excluded/avoided/attacked/whatever. But since we don't specifically and consciously mention race, then we're in the clear!" It's kind of a corollary to "The Purpose Of A System Is What It Does": The purpose of a policy is who it impacts. Disparate Impact recognizes this.
- braiamp 2mo ago
  I would say that some systems are not designed to be discriminatory against a group, but since the designer blind spot for the problem might still play a part. Systems designed to be "neutral" has to be evaluated against a ideal neutral. If we find discrepancies then the system is fixed until it's as close to neutral as possible. By ideal neutral is that their outcome aren't that disparate considering the supposed goal of the system: access to X resource, ability to accomplish X, etc.
- JackFr 2mo ago
  Imagine a city where the schools woefully underserve minority students. Despite equal budgets etc. there is a persistent gap, probably due to income gaps but that’s not the point. Within the education system there is no one institutional factor to blame. Now imagine a civil service exam in that same city, entirely race neutral but resulting in a disparity because it tests general skills. The test is de jure racist when all it does is expose the poor education system. Because the education is so poor, the only remediation is to hire unqualified people. So you end up with a deficient civil service in the name of fairness. There are other ways to examine whether a test or policy is racist.
  - deleted 2mo ago
    [deleted]
  - usernomdeguerre 2mo ago
    >Because the education is so poor, the only remediation is to hire unqualified people. So you end up with a deficient civil service in the name of fairness. I think there's more solutions to that, no? The poor school might make more poor students, but statistically it probably also has some good ones too. So maybe given a basket of roughly equal candidates to a position, one can treat those with a diverse background as having a benefit, rather than looking at their school background and assuming they're unqualified or setting them aside. If your candidates don't meet the bar then fine, but i'm not convinced that's the default case in life.
    - 2mo ago
rayiner 2mo ago
> which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism Can you give examples of how you think there are “inventive” ways people are being racist/sexist?
- tbrownaw 2mo ago
  The usual argument I see is that group differences in outcome exist, therefore there necessarily must be discrimination somewhere causing those differences. That this discrimination can't be found is proof of how inventive the people doing the discriminating are. Since these practices are inferred from their effects rather than directly observed, there's no list.
tbrownaw 2mo ago
> a) "just legislate that being racist/sexist to people is illegal, then have judges interpret" (which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism), The current rules are that [in specific listed contexts] you are not allowed to treat individuals differently on the basis of [explicit list of characteristics]. That's essentially your (a), except it's not up to interpretation. Pretending that it is up to interpretation is how you get things like what the article is about (in that case by measuring group statistics rather than comparing individual experiences).

profsummergig 2mo ago

Obama forced something similar on schools: https://www.ed.gov/laws-and-policy/civil-rights-laws/race-color-and-national-origin-discrimination/dear-colleague-letter-nondiscriminatory-administration-of-school-discipline-rescinded https://www.ed.gov/laws-and-policy/civil-rights-laws/race-co... The policy warned schools that racial disparities in punishments could trigger federal civil rights investigations under a "disparate impact" standard. Ergo, presumably, if a school had a single purple student. And that purple student was punished for something. Then the entire school had to also be punished for the thing. To not fall afoul of the law. (Or maybe I'm just too autistic to have a nuanced take.) (Trump rescinded it.)

deleted 2mo ago
[deleted]
MithrilTuxedo 2mo ago
>Or maybe I'm just too autistic to have a nuanced take. Who is doing the presuming? That sounds like a bad-faith interpretation. It's bad math. You can't expect statistics to be applied at that scale, and I think courts would have agreed if anyone had tried.
wredcoll 2mo ago
> Ergo, presumably, if a school had a single purple student. And that purple student was punished for something. Then the entire school had to also be punished for the thing. To not fall afoul of the law. (Or maybe I'm just too autistic to have a nuanced take.) Then why even post? You just made something up and then spewed it out.
IAmBroom 2mo ago
If your take on ANYTHING is that Obama was a racist, and Trump was anti-racist, everything that follows is ignorable.

userbinator 2mo ago

Unfortunately the only way to have everyone "equal", seems to be to make everyone equally stupid. This idea has been explored in fiction, e.g. Harrison Bergeron.

yieldcrv 2mo ago

Our industry should be going after the ATS system use and harmonizing its implementation Should be going after the camera on policy Should be going after leetcoding, take home interviews, and every subjective metric that isnt able to be verified in its uniform apllicability across candidates and according to this paper, even if it was uniform lol

tbrownaw 2mo ago

I don't see a publish date on this? As I understand it, there have been recent shifts away from what's described and towards the relevant government agencies wanting more direct evidence of individuals being treated differently.

polski-g 2mo ago
Easily undone by the next administration.
- tbrownaw 2mo ago
  At least some were the result of court cases, so maybe not that trivial to reverse.
newsomix9xl 2mo ago
I saw a 2025 copyright at the bottom.
- tbrownaw 2mo ago
  Sure, but that looks like a page footer. If I go to the site home it's the same, so it's probably the last time the site was a whole was updated.
ButlerianJihad 2mo ago
web.archive.org first found it on 9/11/2025 https://web.archive.org/web/20250000000000*/https://www.nyujll.com/volume-14/title-vii-disparate-impact-liability-makes-almost-everything-presumptively-illegal https://web.archive.org/web/20250000000000*/https://www.nyuj...

rho138 2mo ago

[flagged]

lmaoguy 2mo ago

Imagine being such a statist that you agree with outlawing wrong think. Slippery slope is not a fallacy.