Disparate Impact Liability and Settler Colonialism
21st May 2024
A few years ago, law professor Gail Heriot pointed out a problem that some on the Right have been noticing for quite some time: “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal.” She argued that at its core, disparate impact liability is an “incoherent” legal doctrine, because “all job qualifications have a disparate impact” on at least one protected class. Established in Griggs v. Duke Power Co. (1971), disparate impact liability grants “astonishing discretion” to the Equal Employment Opportunity Commission, the federal agency created by the Civil Rights Act of 1964 to enforce laws against workplace discrimination.
Disparate impact liability is a feature, not a bug, of our present regime. The supposed ubiquity of guilt allows the state total license to pick and choose its criminals. If everyone is guilty, then anyone may be singled out for punishment at any time.
What disparate impact liability is to the field of employment law, left-academia’s indictment of settler colonialism is to the study of history. Just as the EEOC indiscriminately targets employers whose hiring happens to disfavor non-whites, the academy is likewise free to accuse nations of injustice that have displaced—you guessed it—non-whites.