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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 techn

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.
  - solidsnack9000 2mo ago
    I'm not sure how the approach you're proposing addresses the example JackFr offers. One reason is that the exam still results in disparate outcomes -- it only tests basic skills -- even though it is not in its design or operation discriminatory. It is a good example of a system that has disparate impact simply as a reflection of some other factor, outside of its control. Your proposal is to combine the exam with a hiring evaluation that weights some factors besides scores on the exam, but "...given a basket of roughly equal candidates to a position..." is doing a lot of work in that proposal. Is that a given? Is that even likely? That depends on the underlying education system, again; and as long as those baskets of roughly equal candidates are rare, the system you propose would also have considerable disparate impact.
ameliaquining 2mo ago
Do you reject the paper's claim (that disparate impact liability makes almost everything presumptively illegal, including in situations where no one has done anything wrong), or do you think that there's no way to address plausibly-deniable intentional discrimination with less collateral damage? Most of the criticisms of POSIWID in https://www.astralcodexten.com/p/come-on-obviously-the-purpose-of https://www.astralcodexten.com/p/come-on-obviously-the-purpo... seem equally applicable to your proposed corollary.
rayiner 2mo ago
What you’re describing is “pretext” and it’s a different thing than disparate impact. You can find liability for pretext even when something is facially race neutral. You have to show circumstantial evidence that the race-neutral rule is being used to deliberately achieve a racist effect. Using circumstantial evidence to infer intent is pervasive in the law. Almost all criminal laws, for example, require showing intent, but obviously almost nobody ever admits their intent. It’s almost always proven indirectly. Disparate impact is entirely different—it eliminates the requirement of “racism” altogether. Under disparate impact, there can be liability even if there is zero intent to have a racially disparate outcome. It’s like how the University of California eliminated the SAT because of disparate impact, but thousands of professors now want it back: https://www.bloomberg.com/news/articles/2026-08-06/why-a-push-to-reinstate-the-sat-has-divided-university-of-california https://www.bloomberg.com/news/articles/2026-08-06/why-a-pus... Disparate impact has had a very negative effect by eliminating aptitude tests from the economy. As a result, employers have turned to college degree requirements to perform that sorting function. But that vastly increased the costs for ordinary people. Now you need a college degree just to be a receptionist.

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.
- solidsnack9000 2mo ago
  I'm not sure how the approach you're proposing addresses the example JackFr offers. One reason is that the exam still results in disparate outcomes -- it only tests basic skills -- even though it is not in its design or operation discriminatory. It is a good example of a system that has disparate impact simply as a reflection of some other factor, outside of its control. Your proposal is to combine the exam with a hiring evaluation that weights some factors besides scores on the exam, but "...given a basket of roughly equal candidates to a position..." is doing a lot of work in that proposal. Is that a given? Is that even likely? That depends on the underlying education system, again; and as long as those baskets of roughly equal candidates are rare, the system you propose would also have considerable disparate impact.

ameliaquining 2mo ago

Do you reject the paper's claim (that disparate impact liability makes almost everything presumptively illegal, including in situations where no one has done anything wrong), or do you think that there's no way to address plausibly-deniable intentional discrimination with less collateral damage? Most of the criticisms of POSIWID in https://www.astralcodexten.com/p/come-on-obviously-the-purpose-of https://www.astralcodexten.com/p/come-on-obviously-the-purpo... seem equally applicable to your proposed corollary.

rayiner 2mo ago

What you’re describing is “pretext” and it’s a different thing than disparate impact. You can find liability for pretext even when something is facially race neutral. You have to show circumstantial evidence that the race-neutral rule is being used to deliberately achieve a racist effect. Using circumstantial evidence to infer intent is pervasive in the law. Almost all criminal laws, for example, require showing intent, but obviously almost nobody ever admits their intent. It’s almost always proven indirectly. Disparate impact is entirely different—it eliminates the requirement of “racism” altogether. Under disparate impact, there can be liability even if there is zero intent to have a racially disparate outcome. It’s like how the University of California eliminated the SAT because of disparate impact, but thousands of professors now want it back: https://www.bloomberg.com/news/articles/2026-08-06/why-a-push-to-reinstate-the-sat-has-divided-university-of-california https://www.bloomberg.com/news/articles/2026-08-06/why-a-pus... Disparate impact has had a very negative effect by eliminating aptitude tests from the economy. As a result, employers have turned to college degree requirements to perform that sorting function. But that vastly increased the costs for ordinary people. Now you need a college degree just to be a receptionist.