Putting the "Systemic" into Systemic Racism
It's time to revisit the legal concept of "disparate impact."
On March 8, 1971, the U.S. Supreme Court decided Griggs v. Duke Power Co., 401 U.S. 424, a major case interpreting the Civil Rights Act of 1964 as it prohibits racial discrimination in employment by any employer. The case involved an educational requirement and general intelligence tests that had the effect of perpetuating racial discrimination in assignments to work areas in a private power generation company.
The Supreme Court accepted the conclusion of both the trial and appeals courts that there was no apparent intent to discriminate on the part of the managers who were responsible for company hiring and assignment of employees. It also found, however, that, in enacting the employment nondiscrimination provisions of the Civil Rights Act, Congress intended to prohibit the use of tests that did not have a direct correlation to the skills and/or knowledge necessary for the job.
The company made no such showing. The Court held that “good intent or absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built-in headwinds' for minority groups and are unrelated to measuring job capability.” The point is that a discriminatory outcome can violate the law regardless of the intent of the entity doing the discriminating.
We now call this idea “disparate impact,” which indicates that the problem is the impact on the group claiming discrimination. In an important law review article, Professor Linda Krieger notes that claims of employment discrimination often produce emphatic disavowals of any discriminatory intent by the targets of the claim. In the current context, we may think of the notion of “white fragility,” or the idea that white people tend to try to make themselves out as the victims when anyone alleges racist behavior. However accurate this observation may be, it does not solve the problem Professor Krieger was thinking about in her article, which is how to resolve claims of racial discrimination in employment.
The underlying problem here is what we call “systemic racism.” The modifier, “systemic,” gets to the problem that practices and meanings that persist from the time when racial discrimination was not only common, but perfectly legal, in the United States can still have their effects even now, when we officially deplore and prohibit racial discrimination. There is also the problem that people are not always fully aware of their own motives.
We see this most vividly in the enormous problem of police shooting Black people for no good reason. Discussing the shooting of Mike Brown in Ferguson, Missouri in 2014, Jamelle Bouie looks at the grand jury testimony of Darren Wilson, the officer who shot him, showing how Wilson characterized Brown as a “superhuman demon.” Bouie explains how this account reflects deep seated beliefs about the supposedly superhuman strength, and corresponding danger, of Black people in our society. A similar problem is widespread, racist beliefs about supposed physiological differences between Black and white people that even current medical school students believe and have an impact on the quality of the healthcare Black people receive in general, and especially with respect to treatment of pain.
The concept of disparate impact is very useful for thinking and talking about clearly racist outcomes without necessarily involving the inevitably fraught question of racist intent. It is hard to avoid seeing a lot of racist intent about in the land these days, but as long as the racists whine loudly and successfully when anyone point out their apparent racist intent, and the primary goal is to eliminate racist outcomes, we should invoke disparate impact more often when we try to discuss this important issue.
As recently as 2015, the Supreme Court again reaffirmed disparate impact as a valid theory for legal liability, under the Fair Housing Act, rather than the Civil Rights Act in the more recent case. The vote on that decision was 5 to 4, with Roberts, Scalia, Alito, and Thomas dissenting. Thomas argued in his dissent that even the idea from Griggs v. Duke Power was not valid, which only increases its legitimacy, since Thomas is usually wrong in his analysis of any question involving racial discrimination.
Having to negotiate white fragility is at least hugely frustrating to Black people who may have to accept racist outcomes in order to appease whiny white people, and no one who genuinely wants to prevent or eliminate racist outcomes will accept white fragility as a way to avoid responsibility for them, but the problem persists. Every situation is unique, but disparate impact offers a way to describe an outcome as racially discriminatory without attributing racist intent to any actors. It is thus a very useful concept that more people should be aware of.