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Without having thought about it super long, like letting myself gradually pick up examples over weeks/months, I can only think of a couple areas that have been able to resist a collapsing of disparate treatment and disparate impact. Credit scores and, currently hanging by a 6-3 thread, gerrymandering.
For gerrymandering, sigh. Honestly, it might just be that the Court is tired of these cases. They get stuck dealing with them over and over again, unlike most of the areas where the disparate treatment/impact distinction is collapsed.
For credit scoring, I think it's that there is soooo much money on the line from politically-powerful interests, plus a little historical "we've been using this for so long" factor. Would credit scoring have to fall under a strict interpretation of how these concepts work according to a radical (or even the otherwise dominant party line)? I think absolutely. Is the reason why it's been able to persist that you can get a human on the stand and ask about intent, animus, whatever? Not at all. Credit scores are an algorithm. An impersonal, just simple math, algorithm, with data in that may be subject to all the complaints people want to have about, "But if your data in is biased by a white supremacist patriarchy, then of course your algorithm is going to have racist and sexist disparate impact." Note that this Colorado law calls out that they're interested in:
No, the reason credit scores are still allowed is because too many connected people would stand to lose too much money if we let the collapse of disparate treatment/impact culminate entirely in the way that it seems to be going in nearly every other domain.
…and then tried to shuffle the boundaries so those 49% would never win again. No wonder they go for Biden.
I can’t believe that “we did it to make their votes worth less” is considered a legitimate defense. That’s obviously against the spirit of the Constitution and (in my opinion) ought to be illegal. Them’s the rules, I guess.
As for credit—I think we’ve got to distinguish between the different laws governing disparate impact.
First, you have the employment restrictions downstream of Title VII and Griggs. I think these are most likely to apply disparate impact, but also have the most explicit protections. We just don’t think about them as much because age and sex discrimination aren’t as politicized today. Construction, warehousing, meat packing…they’re obviously going to favor young men, but their “business necessity” precludes disparate impact. Cue commenters explaining how this is totally a feminist agenda. But I digress.
Gerrymandering isn’t covered by employment law. The opinion makes it clear that it’s a constitutional question. So I’m not surprised that disparate impact doesn’t come into it.
Neither of those laws apply to housing, which imports disparate impact via the Fair Housing Act. Like Title VII, that law is explicitly interested in racial justice.
Where does this leave credit scores insurers, and other actuarial pursuits? They’re certainly not mentioned in the Constitution. None of the titles of the 1964 CRA cover them. If there’s a later civil rights bill that does, I couldn’t find it. Instead, it appears that insurers are regulated by the states.
In other words, federal civil rights legislation doesn’t apply. There are guiderails on state regulations, but they date back to 1945 and use a more narrow definition of discrimination. Congress recognized that they shouldn’t mandate a product while also forcing it to be insolvent. Coming on the heels of the New Deal, this is pretty wild stuff!
Does credit get a similar exemption? Hell if I know. My point is that there’s a legal, intentional basis. Sometimes it’s not actually a corrupt bargain.
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