AFPI Releases New Brief on Disparate Impact Doctrine

WASHINGTON, D.C.— The America First Policy Institute (AFPI) released the following statement from Dr. Michael Shires, vice chair for Education Opportunity, following the release of AFPI’s new issue brief and the Department of Justice’s (DOJ) recent opinion clarifying the “Constitutionality of Disparate-Impact Liability Under Title VII.”

AFPI’s new brief, “Equal Treatment & College Degree Barriers: The Problem of Disparate Impact Doctrine,” exposes disparate impact doctrine as conceptually flawed and counterproductive. In attempting to remedy so-called “disparate impact discrimination”—group outcome differences that emerge from equal treatment—the government has unfairly denied Americans equal treatment under law and unnecessarily impeded economic mobility.

"The American justice system should ensure equal protection under the law,” said Dr. Shires. "Disparate impact doctrine turns civil rights law on its head by pursuing equal outcomes at the expense of equal treatment under the law. This opinion is a bold move to restore true fairness in American hiring practices.”

The DOJ’s opinion likewise rejects the notion that group average differences (for example, in hiring and promotion) are “discriminatory” in and of themselves. In line with AFPI’s recommendations, the new guidance opens the door for businesses to use skills-based hiring practices and aptitude tests without fear of being targeted by those who have abused Title VII to pursue equity at the expense of equality. The DOJ’s opinion also protects employers from frivolous disparate impact claims by placing the onus on plaintiffs to demonstrate both legal violations and viable alternative policies.

To read the brief in full, click here.