Disparate impact law is is a extension of more traditional “disparate treatment” law, which bars employers from intentionally treating individuals differently because of their skin color, sex or age.
Obama is a strong supporter of disparate impact law.
His deputies in the Justice Department, the EEOC and the Department of Housing and Urban Development are also using it to regulate banks’ lending practices, schools’ discipline policies, and hiring practices by every employer with more than 15 employees.
The Supreme Court affirmed this far-reaching law in 1971. Since the decision, titled Griggs v. Duke Power Co., employers have insulated themselves from some liability by hiring credentialed graduates rather than people without university degrees.
And since Congress updated the law in 1991, the burden of proof in disparate-impact lawsuits has been on employers to show that job requirements and hiring decisions are free of any rules, tests or practices that tend to reduce the hiring of minorities to below their percentage of the qualified workforce.
For a plaintiff to win, “there doesn’t have to be a conscious attempt [by an employer] to discriminate — there just has to be [hiring] criteria that have the effect of discriminating against a group,” said Goldberg.
If the Obama re-election campaign were to be sued, the photo shows that it would “have a strong burden to overcome,” Pacific Legal Foundation civil rights lawyer Joshua Thompson told TheDC.
For example, employers tend to lose lawsuits when they rely on “word of mouth” recruiting because white hiring managers are likely to know more whites than minorities.
Similarly, employers increase their legal risk if they exclude all job applicants who have criminal records, according to a recent EEOC decision. That’s because Africans-Americans are more likely to be excluded than whites, EEOC assistant legal counsel Carol Miaskoff told TheDC. They’re statistically more likely to have criminal records than whites, she said.
In practice, employers’ use of illegal practices can be detected by a careful legal investigation, said lawyers.
“[I] sure would like to know what criteria they used to determine who they hired, how they recruited and what the pool of applicants looked like,” Abrams told the TheDC after examining the Obama’s campaign photo.
Investigations take several months, said the EEOC’s Miaskoff. But “we wouldn’t get involved unless someone came to us and filed a case,” she said. “We don’t go around trolling for gotchas.”
In general, employers are safe from EEOC hiring lawsuits — but not private-sector lawsuits — as long as minority or female job applicants pass tests, or are hired, at four-fifths the rate of whites or men, regardless of their qualifications.
Skewed hiring is allowed, however, in some circumstances.
It is permitted when a pool of qualified applicants is itself skewed by a lack of qualified minorities, but that assumes the job qualifications are judged to be rational.
It is also allowed when minorities don’t want the advertised jobs — as long as their tasks, accommodations and compensation are judged to be the same as non-minorities.
But these factors don’t seem relevant to the whiteness of Obama’s office staff. There is little or no evidence, for instance, that African-Americans don’t want to work for Obama’s campaign. In fact, many of the pictures on his campaign website show unpaid African-American volunteers working in satellite offices.
Poling data also show that Obama’s support among African-Americans exceeds 90 percent, and that African-Americans comprise roughly 25 percent of the overall Democratic coalition.
And there is little or no courtroom-ready evidence that Obama’s team cannot find enough skilled African-Americans to work on software, websites, press releases, videos, and the many back office tasks that can make or break a campaign.