In the latest chapter of Trump’s fight against civil rights, he’s now targeting a legal idea called “differential influence.” This notion was referenced in a Presidential Order from April 23rd, which suggests a move to mitigate its implications as much as possible.
Trump asserts that various impact theories lead to discrimination, claiming they prevent companies from focusing on merit and skills during hiring processes, thus complicating evaluations of job candidates.
This all sounds pretty severe, but, actually, it’s misleading.
The Supreme Court previously clarified this concept of impact in a 1971 case, Griggs v. Duke Power Co. In that situation, applicants aspiring to roles in a more favorable department at North Carolina power plants had to either hold a high school diploma or pass two aptitude tests. Unfortunately, this ended up disqualifying many black applicants, who had often attended under-resourced schools. Conversely, white employees without diplomas were able to secure jobs before these standards were enforced and even received promotions. Furthermore, those aptitude tests did not accurately assess job performance.
While these requirements appeared neutral on the surface, the Supreme Court deemed them illegal. They determined that the Civil Rights Act mandates the removal of arbitrary barriers to employment that might be manipulated based on race or other immutable characteristics. Essentially, even if the policies seem fair in form, they can still operate in a discriminatory manner.
This ruling didn’t ban all forms of employment testing or render all racially imbalanced outcomes illegal. Employers can still present practices that might have discriminatory effects if they can demonstrate that those methods accurately gauge job performance. This stands in stark contrast to Trump’s assertions.
Trump claims that different impacts create a nearly impossible assumption of illegal discrimination when racial or gender disparities are noted. In reality, proving these cases is quite challenging, requiring extensive data on outcomes, which is often hard for rejected candidates to obtain. Gathering and analyzing such data demands significant resources and statistical know-how.
Even if certain practices disproportionately affect marginalized groups, employers can defend them if they can show they are necessary for business. Courts frequently give weight to the business judgments of employers, and in recent years, cases alleging differential impact have enjoyed little success.
Trump’s arguments do not hold solid ground when he suggests that businesses need to maintain racial balance to avoid legal risks. While differential impacts have been recognized in federal law for years, significant racial disparities persist across various fields.
As president, Trump has the authority to influence enforcement priorities, but he can’t simply repeal existing laws. The Supreme Court, in Griggs, established this concept unanimously, and Congress codified it in the 1991 Civil Rights Act, signed into law by President George H.W. Bush. Since then, differential impact claims have been acknowledged under laws preventing discrimination in employment, housing, and credit.
Differential impacts serve as essential tools in upholding civil rights legislation. While it’s vital to address intentional discrimination, not all discriminatory practices stem from deliberate malice. Extensive research over the years has shown that unconscious bias can lead to unfair judgments against marginalized communities. America’s long history of racism and inequality has fostered various practices that can unintentionally perpetuate disadvantage, even if those behaviors aren’t rooted in open hostility. If these practices lack legitimate business justification, they shouldn’t be permitted.
So why does Trump claim that this differential impact is “obligated, not banned”? Though the executive order offers no clear rationale, some conservative voices suggest that even the intention to remove unjust practices tied to certain racial groups constitutes a form of discrimination by simply considering race.
But that perspective is not echoed by the Supreme Court’s findings. Even conservative justices like Anthony Kennedy and Antonin Scalia recognized the importance of striving for greater racial equality and integration.
The effort to eliminate unnecessary barriers at Duke Power wasn’t racially biased; it aimed to remove arbitrary job criteria that prevented black workers from gaining employment. Applying differential impact laws does not mean discrimination; rather, it promotes fairness in the workplace for everyone.
Trump’s flawed logic highlights a deeper issue. By challenging theories of differential influence, he not only distances himself from the persistent racial inequalities evident in American society but also reveals an intention to undermine the very civil rights protections established to counter those inequities.
