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Crafting New Tools For Evolving Problems

Should laws against discrimination provide equal opportunities or should they ensure equal outcomes? Or, as a third option, should laws against discrimination merely prohibit discrimination, without regard to either opportunities or outcomes?

The way we answer these questions probably says something about our individual backgrounds, and it certainly says something about where we fall on the spectrum of today’s American politics. The way the courts answer these questions will say a lot about how laws that were crafted to remedy societal ills in the middle of the 20th century will be applied as we move toward the middle of the 21st.

We are working through these questions on multiple fronts. Yesterday’s 5-4 decision voiding the list of jurisdictions subject to “preclearance” under the Voting Rights Act demonstrated that laws based on conditions that prevailed 40 or 50 years ago will have a tough time passing constitutional muster. “…voting discrimination still exists; no one doubts that,” Chief Justice John Roberts wrote for the court’s conservative bloc. “The question is whether the Act’s extraordinary measures, including its disparate treatment of the states, continue to satisfy constitutional requirements. As we put it a short time ago, ‘the Act imposes current burdens and must be justified by current needs.”

On Monday the court deferred a final decision on another long-vexing question, the use of racial preferences in admission to public universities. A 7-1 majority permitted, at least for now, the continued use of such preferences, which the court authorized in its 2003 Grutter v. Bollinger ruling, but it told the lower courts to apply the highest legal standard to decide whether such preferences are justified by the pursuit of diversity. That standard, known as “strict scrutiny,” is likely to be difficult or impossible to meet in practice, especially since eight states that claim to actively seek diversity already prohibit such preferences.

The court is expected to wrap up its term today with two closely watched cases involving same-sex marriage and a third, lower-profile appeal involving a businessman’s attempt to use blackmail in order to win a New York state investment in his company. Then the justices will go away for a few months - but the calendar of discrimination cases will not.

Next fall, the high court expects to take up the question of whether illegal discrimination, deliberate or otherwise, can be inferred from unequal results. The concept is called “disparate impact,” and it is one that the Obama administration’s Justice Department has not been eager to test in front of this skeptical court.

The municipality of Mount Holly, N.J., is fighting a lawsuit filed by residents under the Fair Housing Act. These residents object to the demolition of a blighted, largely minority neighborhood. Local officials say the planned demolition lacks any discriminatory intent and is aimed at improving the community for everyone, including minorities.

A decision in favor of Mount Holly would signal a major change. Eleven courts of appeals have previously ruled that disparate impact claims are allowed under the federal Fair Housing Act.

Now that the justices have agreed to hear the case, the Obama administration will probably do its best to make sure the matter is settled before it can come before the bench. Last year the administration cut a deal with the city of St. Paul, Minn., to drop a Supreme Court challenge that could have eliminated disparate impact cases in housing enforcement. At the time, the Justice Department also noted that the Department of Housing and Urban Development planned to write a new, clearer rule to set standards for disparate impact housing claims. The rule was finalized in February.

It will be rougher going for the administration to try to convince Mount Holly to drop its case. Unlike St. Paul, Mount Holly’s case relates not to the enforcement of city code, but to a large, government-funded redevelopment project. It seems unlikely Mount Holly will be inclined to back down. It won’t surprise me if the Obama administration tries to coax the local citizens into dropping their case instead in order to render the potential Supreme Court decision moot.

Yet even if the Mount Holly case goes away, the disparate impact issue will not. The Equal Employment Opportunity Commission sued two companies recently over their use of criminal background checks, on the grounds that the policy discriminates against racial minorities in practice, if not in intent. The companies say they will defend their right not to employ convicted criminals.

The EEOC wants to substitute its judgment for that of employers’ on the question of whether a criminal record is sufficient basis to be denied a job. The EEOC thinks people who have paid their debt to society ought to be treated the same as competitors with clean records, except in cases where the employer can show, to the commission’s satisfaction, that there is a reason to avoid hiring a convicted felon. The commission’s problem is that the law does not protect convicts as a class, so the commission has to rely on claims that such hiring practices have a disparate impact on minority groups.

The EEOC’s argument is not entirely groundless. Human resources professionals have long counseled against using arrest records in employment decisions, because minorities are arrested at disproportionately high rates. Arrests, in themselves, are not proof of any wrongdoing. Moreover, minorities are more often targets for prosecution, especially for certain crimes, than are whites. For an example, one need only observe the number of black and Hispanic New Yorkers charged with marijuana possession under New York City’s promiscuous stop and frisk program.

Employers who cite any conviction, no matter how minor, as grounds for rejecting candidates will in fact, if not by intent, remove many minorities from the pool. The logical response to this problem is to create a more rational system of drug and other laws and to enforce them fairly. Doing so would erase the source of the disparate impact without interfering in employers’ right to decide, in a non-discriminatory way, who they want to hire.

Ours is certainly not a perfectly just and fair society, but neither is it the society of a half-century ago, which accepted the poll tax and the whites-only country club. Well-crafted and well-enforced laws had a lot to do with the progress we have made. Yet any tool ought to be chosen to fit the task at hand. We are not going to build the best America possible in the 21st century using tools designed for the 20th.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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