Transcript [00:03] Hello everyone and welcome to FedSock [00:06] Forums. Today, September 29th, 2026, we [00:10] are delighted to host a conversation [00:12] titled, "Is the private bar weaponizing [00:15] employment discrimination law? My name [00:18] is Anmarice Matona and I am a secondyear [00:20] law student at the University of Arizona [00:23] in Tucson. I also serve as a student [00:26] liaison to the Federalist Society's [00:28] civil rights practice group. As always, [00:31] please note that all expressions of [00:33] opinion are those of the experts on [00:35] today's call as the Federalist Society [00:37] takes no position on particular legal or [00:40] public policy issues. [00:43] Today we are fortunate to have Jennifer [00:46] Dicki and Lauren Groyle as our [00:47] panelists. Jennifer B. Dicki is vice [00:51] president and deputy chief counsel at [00:53] the US Chamber Litigation Center, the [00:57] litigation arm of the US Chamber of [00:59] Commerce. Dicki handles a variety of [01:02] litigation matters for the Chamber. [01:04] Earlier in her career, Dicki served as a [01:07] law clerk for the Honorable Clarence [01:09] Thomas of the Supreme Court of the [01:11] United States and the Honorable William [01:14] H. Prior Jr. of the United States Court [01:17] of Appeals for the 11th Circuit. [01:21] Lauren Grole is associate counsel at the [01:24] Wisconsin Institute for Law and Liberty. [01:27] She focuses on legal and policy issues [01:30] related to to K through2 education in [01:33] Wisconsin. [01:34] Lauren returned to Wisconsin this year [01:37] after receiving her law degree from [01:39] Regent University School of Law in V [01:41] Virginia Beach, Virginia. [01:44] She also holds a bachelor of arts degree [01:47] in political economy from Hillsdale [01:49] College in Hillsdale, Michigan. [01:52] Today's moderator is Dan Morino. Dan is [01:55] the executive director at the American [01:57] Civil Rights Project and an adjunct [02:00] fellow at the Manhattan Institute. His [02:03] work focuses on protecting and where [02:05] necessary restoring the primacy of all [02:08] Americans shared civil rights against [02:10] the identitarian alternative. [02:13] One note for our audience before we [02:15] begin. If you have any questions [02:17] throughout the webinar that pertain to [02:19] the topic at hand, please submit them [02:21] through Zoom's Q&A feature located at [02:24] the bottom of your screen, not the chat, [02:27] so that we'll be able to access them [02:28] later in the program. [02:30] With that note, I will turn things over [02:32] to our speakers to start the [02:34] conversation. And Dan, thank you so much [02:36] for joining us in moderating today's [02:38] discussion. [02:39] >> Thanks, Amarie. Um, I really do [02:42] appreciate you having us here. I know [02:43] I'm looking forward to hearing what our [02:45] actual panelists have to say. Um, I [02:47] think that will be very interesting. So, [02:50] since I doubt anyone actually [02:51] [clears throat] came to listen to me, [02:52] let me let me jump in and get things [02:54] rolling. [02:55] um one thing that I noticed when I saw [02:58] the title of this [03:00] panel was that I had no idea what we [03:02] were talking about. So to be perfectly [03:05] honest, so uh Jennifer uh you work with [03:08] the chamber. Can you start us out by [03:10] explaining at a general level what are [03:13] we talking about? What what's wrong with [03:15] our employment law from uh an employer [03:18] perspective and and how can we tell? [03:22] >> Sure. So what we're talking about [03:24] specifically in this panel is title 7 [03:26] employment discrimination which is the [03:28] federal law that prohibits [03:30] discrimination in employment by [03:31] employers, state and local governments, [03:34] educational institutions that had 15 or [03:37] more employees for at least 20 calendar [03:39] weeks or more in the current or [03:40] preceding year. So basically everybody [03:42] but pretty small businesses. And Title 7 [03:45] serves a really important purpose. The [03:47] chamber strongly supports efforts to [03:50] eliminate Nvidia's discrimination in the [03:52] workplace. But what we're really talking [03:54] about today is whether and how Title 7 [03:56] can be weaponized. And I think the [03:58] simple reality is that of course, like [04:00] almost any other cause of action, it can [04:02] be. First, it can be weaponized in the [04:05] sense that people may bring claims that [04:06] aren't really meritorious, but for which [04:08] they still may be able to get a payout. [04:11] So to give some concept of scale here, [04:13] the EEOC received 88,201 [04:16] new discrimination charges in 2025. [04:20] Many of those are likely not [04:21] meritorious. For those that are, the [04:24] vast majority will be addressed without [04:26] needing to go to litigation. So like the [04:28] EEOC filed only 94 merits lawsuits in [04:32] 2025 while obtaining $528 million for [04:36] employees through its prelitigation [04:38] enforcement processes. So that just kind [04:41] of gives you an idea like 88,000 claim [04:43] charges. They ended up filing 94 merit [04:46] lawsuits. They got, you know, 528 [04:50] million in pre-litigation enforcement [04:52] process. Um, but according to Lex [04:55] Machina, [04:56] EOCC filed 94, but there were 20,725 [05:01] employment lawsuits filed in federal [05:03] courts in 2025. And that represents an [05:06] upward trend from earlier in the 2000s. [05:08] So that's just a huge volume. And [05:10] plaintiffs know that these suits can [05:12] impose significant settlement pressures [05:14] on defendants. Even if the actual [05:16] damages are small, there may be punitive [05:18] damages and then there are parallel [05:20] state laws that don't have the same caps [05:22] on damages that are in the federal law. [05:25] And worse than the awards themselves may [05:27] be the defense costs because even though [05:30] in theory there may be some attorneys [05:32] fees available, um it's pretty hard for [05:34] defendants to get that. And even then, [05:37] it's going to cover only a fraction of [05:38] the costs. And sometimes these Title 7 [05:41] claims can be brought as class actions. [05:43] You know, people sometimes forget [05:45] Walmart versus Dukes. They think of it [05:47] as the class action case. It was a Title [05:49] 7 case, like Title 7 claims brought by a [05:52] class comprising about one and a half [05:54] million plaintiffs. Walmart was facing [05:57] billions of dollars in liability. And [05:59] although the Supreme Court eventually [06:00] held that the case could not proceed as [06:02] a class action, I would be shocked if [06:04] the defense costs didn't exceed tens of [06:06] millions of dollars on the way to that [06:08] ruling. So huge settlement pressure both [06:10] from the damages, the defense costs. [06:13] Then you add in disperate impact claims [06:16] which are very challenging to defend. [06:18] Um, and setting all those costs aside, [06:21] you also have settlement pressure [06:23] arising out of the reputational harm [06:25] from being labeled a discriminator. [06:27] Indeed, it's possible that some [06:29] plaintiffs target public figures or [06:31] really well-known companies precisely [06:33] because they know that those companies [06:36] or figures don't want to be tred with [06:37] the label of being a discriminator. And [06:40] so that leads me into the second reason [06:41] that some of these lawsuits may be [06:43] brought. So the first is uh [06:46] non-merritorious but trying to get [06:47] money. The second is they might just be [06:49] looking to obtain discovery. We know, [06:52] for example, that some plaintiffs in [06:54] these claims have sought discovery um [06:56] into DEI policies. They might be looking [06:59] for other information that they view as [07:00] potentially embarrassing or would serve [07:02] other objectives. [07:04] And the third way reason that these [07:07] claims might be brought is to affect [07:09] policy level change. This is [07:11] particularly true for disperate impact [07:12] claims. Claimants may wish to discourage [07:14] employers from using criminal background [07:16] checks or credit checks or artificial [07:18] intelligence tools in the hiring [07:20] process. They may wish to discourage uh [07:22] employers from using certain performance [07:24] assessment tools for their employees. [07:26] And that's not what really Title 7 is [07:28] for. But businesses, you know, [07:31] businesses need to room to exercise [07:33] their business judgment on what's the [07:35] best approach to hiring applicants and [07:37] supervising their workforce. But these [07:39] Title 7 claims, especially disperate [07:42] impact claims, can be used to [07:44] superintend those practices um and [07:47] really get us away from the intentional [07:49] discrimination that Title 7 was designed [07:51] to address in the first instance. [07:54] >> Okay. Um [07:57] excuse me, Lauren. So, you're a public [07:59] interest lawyer. You're at Wisconsin [08:02] Institute for Law and Liberty. [08:05] from that background, is there anything [08:07] that Jennifer just said that you agree [08:09] with? Um [08:12] what what's missing from this picture? [08:14] >> Yeah, so just to start off, obviously um [08:18] there is a lot of truth to the fact that [08:22] complaints can be brought by anybody um [08:25] under the EEOC if they feel as though [08:28] they've been discriminated against under [08:30] Title 7. And so there will be claims [08:33] that don't have a lot of merit to them. [08:35] I think that that can be absolutely [08:37] true. And the numbers that Jennifer gave [08:39] are obviously very large, right? 88,000 [08:42] complaints. That's a lot of complaints. [08:44] Not all of those are going to be claims [08:47] that the government is willing to take [08:49] on um and investigate further, [08:52] especially um in that pre-litigation [08:55] settlement type phase, which I think is [08:56] what the goal is for a lot of these [08:58] complaintants to reach. Um, that being [09:01] said, the EEOC and the amount of cases [09:05] that they're willing to take or able to [09:08] take isn't necessarily indicative of [09:10] whether or not those cases do have [09:13] claims. So, 88,000 claims were brought. [09:16] Only 94 were moved on to that next [09:19] phase. That doesn't mean that all of the [09:22] other claims that were filed that the [09:25] EEOC didn't take on weren't Meridus [09:28] claims, right? and that leaves those [09:31] individuals without um any [09:34] representation from the federal [09:35] government. So having a private right of [09:38] action, a right to sue under the EEOC [09:41] allows those individuals to continue [09:43] with their claims. Um and then at that [09:46] stage, other attorneys, other firms can [09:48] pick those claims up and bring them in [09:51] court. Um, and I'll give just a couple [09:54] examples actually of cases that the [09:57] Wisconsin Institute for Law and Liberty, [09:58] which as you mentioned is a public [10:00] interest law firm. We're based in [10:01] Milwaukee, Wisconsin. Um, but we do work [10:04] nationally across the country. Um, we've [10:07] picked up some of these cases and again, [10:10] the claims that these people were [10:11] bringing were absolutely [10:15] um, valid and were claims that were [10:18] worth litigating. they just weren't [10:20] claims that the current EEOC [10:23] was willing to investigate further. Um, [10:26] so for, you know, whatever reason, [10:28] whether it was capacity or there were [10:30] issues that they didn't want to get into [10:33] could depend on the administration and [10:35] the subject matter of the claims as well [10:37] to a certain extent. Um, but just as an [10:40] example, we represented a teacher in um, [10:45] 2025. So, he was teaching in a school [10:48] district in August of 2022 as an English [10:51] teacher and the school announced a [10:54] policy that they were going to start [10:56] requiring staff members to use preferred [10:58] names and pronouns of transgender [10:59] students. Um, this particular teacher [11:03] was very religious and he believed that [11:06] they're that these children were made in [11:09] the image and likeness of God and that [11:11] God doesn't make mistakes with those [11:13] children. And so he felt as though using [11:17] preferred names and pronouns would be [11:19] going against um God's design. That was [11:22] his religious belief. And he immediately [11:24] expressed that to the administration. [11:27] And for months, the school actually [11:29] allowed this teacher to refer to [11:32] students using last name only or no [11:35] name. Um simply calling on a student [11:37] just by pointing at them. But this the [11:40] teacher wasn't, you know, going out of [11:43] the his way to um misname or deadname [11:48] any of these students. It was still very [11:49] respectful and that was the [11:51] accommodation that the school had [11:53] allowed him to give. Um a few months [11:57] later, the teacher was told that he [11:59] couldn't do that. that was no longer [12:01] good enough and he was at risk of [12:05] termination if he did not use preferred [12:07] names and pronouns for transgender [12:10] students in his classes. Um he still [12:12] would not and that resulted in his [12:16] teacher contract not being renewed in [12:18] the spring. Um, so in the conversation [12:23] about why his teacher contract was not [12:25] being renewed, it was very specifically [12:27] because of his religious beliefs and [12:30] this um unwillingness to follow school [12:33] policy on names and pronouns. Um, so [12:37] that was a violation of the first [12:39] amendment as well as title 7. It's [12:40] discrimination based on religious [12:42] belief. And in that case, the EEOC [12:46] provided Mr. Cernic with a right to sue [12:49] letter. So basically said, "You filed [12:52] this claim. We're not going to take it [12:53] on. Um, but if you want to continue with [12:56] it, you can, and here's your right to [12:58] sue sue letter." That's when the case [13:01] came to Will, and Will was able to file [13:05] a complaint. Um, and we were able to [13:09] come to an agreement with the school [13:10] district and settle the case um, after [13:14] that complaint was filed. But the EEOC [13:17] didn't carry that on and this teacher [13:19] wouldn't have gotten any relief for [13:20] being terminated for his religious [13:22] beliefs had that private right of action [13:25] not been pursued. And we've had a couple [13:28] other cases at will. I won't go into as [13:30] much detail on them, but I do just want [13:32] to flag them because I think that [13:33] they're interesting. Um because this [13:36] spans outside of um religious [13:39] discrimination as well. Um, so last [13:42] fall, Will filed an EEOC complaint on [13:45] behalf of a teacher um who was a special [13:48] education teacher in public schools. Um, [13:52] and essentially this teacher was [13:54] surplused or essentially involuntarily [13:56] transferred um over a less qualified [14:00] teacher because of her race. Um, the the [14:03] woman the teacher in this case is white. [14:06] Um, and the school district was using a [14:08] scoring system to determine how [14:10] educators are surplus or involuntarily [14:12] transferred to other schools. And that [14:15] scoring system heavily weighted [14:17] culturally responsive practices, a [14:20] category that the school actually [14:22] specifically said was intended to [14:24] intended and designed to protect [14:27] teachers of color. Um, this particular [14:30] teacher that we filed the complaint on [14:32] behalf of performed excellently in every [14:35] category um, and was even called a [14:38] superhero by her principal in her [14:40] evaluation. Um, but was still scored low [14:43] in the culturally responsive category. [14:46] And when she pressed for more [14:47] information about why that was because [14:49] she'd never gotten any complaints about [14:51] any anything that she was doing, her [14:53] practices, in fact, all of her reviews [14:55] from her her um supervisors as well of [14:58] her as her students were glowing. Um she [15:02] was not given any reason um no [15:05] explanation. So in that case again the [15:08] EEOC [15:09] uh issued a right to sue letter. So the [15:13] federal government would not be [15:14] enforcing the law and without this [15:17] private right of action, Cali, this [15:18] teacher would be forced to endure this [15:21] unlawful scoring practice in her [15:23] district. So, there's lots of examples [15:26] of, you know, the EEOC not taking these [15:30] complaints further, but that again [15:32] doesn't mean that they're not um valid [15:35] claims or that these people aren't [15:37] bringing up valid issues. Um, I think it [15:40] largely hinges on I the criteria that [15:44] the EEOC uses to determine what claims [15:47] are worth while moving to that next [15:50] phase. So that private right of action [15:52] while it can be burdensome um and I [15:55] don't want to I agree with Jennifer [15:56] there and I don't want to diminish that [15:58] fact um at the same time a lot of these [16:01] claims wouldn't be able to be continued [16:04] um if it weren't for a private right of [16:06] action. [16:07] >> Okay. Um I'm going to zoom the lens out [16:11] a little bit. I mean we will talk a [16:12] little bit more specifically about a few [16:14] specific cases. I think it'll probably [16:16] be helpful. But before we do, um it [16:20] sounds like both of you actually agree [16:22] both that [16:24] there are claims that are filed because [16:26] they're meritorious and that there are [16:28] also claims and I'll put the best face [16:30] on this I can uh that are filed [16:34] because they're colorable and because a [16:36] zealous advocate is trying to get [16:38] anything at all for an unhappy client. [16:41] Um [16:42] and arguably that's in fact their duty. [16:45] So, um, I know that I, you know, my [16:50] experience as a litigator, that's [16:52] certainly been what I've seen. I suspect [16:55] if you asked anyone who's been [16:56] practicing for any amount of time, [16:57] they'd go, "Oh, yeah, that's definitely [16:58] the case." They're definitely examples, [17:00] and they're definitely examples. [17:03] I guess to turn this into a question, [17:05] um, [17:08] Jennifer, what could be done to adjust [17:10] the law to prevent those those zealous [17:14] advocates in the latter category from [17:16] leveraging the existence of that [17:18] admitted former category to shake down [17:22] unwarranted recoveries in ways [17:26] that make things worse for every honest [17:28] employer and on net for every employee. [17:33] So I think two things. First um I think [17:36] the attorney's fees issue is a big one. [17:38] Title 7 provides that in any action or [17:41] proceeding under this title, the court [17:42] in its discretion may allow the [17:44] prevailing party a reasonable attorney [17:46] seat. But the Supreme Court back in 1978 [17:50] interpreted that provision as applying a [17:52] different standard for plaintiffs and [17:53] defendants. They say it said a [17:55] prevailing plaintiff ordinarily is to be [17:57] awarded attorney's fees in all but [17:59] special circumstances. But a defendant [18:02] is entitled to attorney's fees only if a [18:04] court finds that the plaintiff's claim [18:06] was frivolous, unreasonable, or [18:08] groundless, or that the plaintiff [18:10] continued to litigate after it clearly [18:11] became so or bad faith. Basically, um [18:16] that standard of course is nowhere in [18:17] the text of the provision. It was read [18:19] in based on the Supreme Court's [18:21] assessment of the policies underlying [18:23] Title 7. Um, and it bakes in, it also, I [18:29] want to point out, bakes in existing [18:30] case law that significantly reduces [18:32] actual attorney's fees based on a [18:35] court's assessment of what a reasonable [18:36] attorney's fee is for this matter. So, [18:38] obviously, a court [18:41] always needs to impose some limits to [18:43] avoid a defendant from running up bills [18:44] unnecessarily or a plaintiff for that [18:46] matter. But the fact of the matter is [18:47] that many highquality attorneys charge [18:49] rates way above what could ever be [18:51] recovered under the current doctrine. [18:53] And I think if attorney's fees and real [18:56] attorneys fees were more readily [18:58] available to defendants, that would [18:59] substantially deter meritless filings. [19:02] And then second, I think courts, now [19:04] obviously that courts can't do too much [19:06] on that because there is a Supreme Court [19:07] press down point, but I do think, you [19:09] know, judges could start raising the [19:11] question about whether that's a correct [19:13] interpretation of that provision given [19:14] that it's not in the text. Um, and then [19:18] better case management. You know, courts [19:20] should not allow expansive discovery to [19:22] begin over the objections of a defendant [19:24] if the defendant has a motion to dismiss [19:26] or other dispositive motion pending. The [19:28] court should police discovery to try to [19:30] prevent overly burdensome requests that [19:32] are designed to just heighten settlement [19:34] pressure. So enforce the apex doctrine, [19:36] for example, which under which you can't [19:39] just go straight to the top in terms of [19:40] corporate defendant, corporate officers. [19:42] You can't like say I'm going to take the [19:45] deposition of the CEO of Walmart. you [19:47] have to work your way up with people who [19:49] actually have personal knowledge before [19:52] um before imposing that kind of burden [19:54] on a defendant, which is something that [19:55] applies typically to the government and [19:57] in many jurisdictions to corporate [19:59] defendants, but not all. And that is [20:01] another sort of way that courts can at [20:04] least try to avoid, you know, blackmail [20:07] settlements, uh which I think can arise [20:10] under title 7. [20:12] >> Sure. Okay. Um, [20:14] one of the examples that uh, Jennifer [20:16] you mentioned earlier was was disperate [20:19] impact liability and I I want to [20:25] narrow down to talk about just that for [20:27] just a moment. Um, [20:31] from your vantage, [20:36] can you tell whether most employers have [20:38] any idea what disperate impact means? uh [20:40] what might be required of them to avoid [20:44] utilizing employment policies that [20:46] eventually have disperate impacts across [20:48] title 7's covered demography and uh to [20:51] the extent that you you you think that [20:53] most employers do what do you understand [20:56] that employers might do to try to comply [21:00] with those requirements? [21:02] >> Sure. So I think one thing I just want [21:04] to say at the outset, disperate impact [21:05] liability under title 7 initially was [21:09] basically implied. The Supreme Court [21:11] read a disparate impact cause of action [21:14] into the statute in a case called [21:16] Griggs. It was kind of the the first of [21:18] the implied disperate impact causes of [21:20] action. Then um the Supreme there were [21:23] some follow-on cases and then Congress [21:25] acted and put into the statute the the [21:28] burden shifting framework for disperate [21:31] impact. They didn't say we necessarily [21:34] agree that there was this cause of [21:35] action, but they put in the the burden [21:37] shifting framework. And under that [21:39] framework, for those listening, you [21:40] know, the plaintiff is supposed to have [21:42] to come in and show that a particular [21:44] employment practice causes a disperate [21:46] impact on the basis of race, color, [21:48] religion, sex, or national origin. Then [21:50] the burden shifts to the defendant to [21:51] show that the practice is jobreated for [21:54] the position in question and consistent [21:56] with business necessity. And then the [21:58] burden shifts back to the plaintiff to [22:00] show that there is an alternative [22:01] employment practice um under the ward's [22:04] code standard which is basically that it [22:05] will serve the business's purpose at [22:08] purposes and cause less of a statistical [22:10] disparity and the employer refuses to [22:12] adopt such alternative employment [22:13] practice. Um the Supreme Court [22:16] recognized in inclusive communities [22:19] which was sort of its last big statement [22:21] on disparate impact that we don't want [22:23] race to be injected into every business [22:25] decision. But disperate impact has that [22:27] feel, right? Um in in Reichi, Justice [22:31] Scalia emphasized that, you know, Title [22:34] 7's disperate impact provisions place a [22:36] racial thumb on the scales, often [22:38] requiring employers to evaluate the [22:40] racial outcomes of their policies and to [22:43] make decisions based on because of those [22:46] racial outcomes. He said that type of [22:49] racial decision-making is [22:50] discriminatory. So, it puts employers in [22:53] a bind. they basically have to be [22:56] evaluating the racial impacts of some of [22:58] their decisions to try to avoid [22:59] disperate impact liability. Um, that may [23:02] mean that they kind of they run [23:04] different programs to see if we did this [23:08] policy and if we did that one, what's [23:09] the the makeup going to be? And they [23:12] choose a policy that seems to have less [23:14] of a disperate impact. That seems to be [23:16] what Congress is getting at with, you [23:18] know, choosing a less discriminatory [23:19] alternative if it's going to be serving [23:21] the the policies equally well. But it [23:24] could also lead to, you know, racially [23:26] discriminatory individual decisions, [23:29] right? If they're trying to sort of [23:31] balance on the back end to avoid a [23:33] disperate impact. So, here's just an [23:35] example. Let's say an apartment company [23:37] has a policy that it doesn't want to [23:39] hire any maintenance folks who have [23:41] criminal history because maintenance [23:43] folks enter apartments and they don't [23:44] want to have a situation in which their [23:46] employees either assault the apartment [23:48] residents or steal from them. So they [23:49] say we just don't want criminal history. [23:51] But because of the makeup of our [23:53] criminal justice system, that policy [23:54] will have a disperate impact in hiring. [23:57] So if the company wants to avoid such [23:59] potential liability, it could either try [24:01] to make raceconcious choices in its [24:03] individual hiring decisions which would [24:05] expose it to title 7 intentional [24:07] discrimination claims or um it could [24:11] abandon its policy. Even if feel even if [24:14] it feels quite confident that it could [24:16] eventually win a lawsuit on like the [24:18] business necessity of the policy, the [24:20] spectre of litigation costs is going to [24:22] discourage that. And so a lot of [24:25] businesses are going to end up [24:26] abandoning abandoning good policies [24:29] because of fears of disperate impact [24:31] liability and some may engage in the [24:34] racially discriminatory acts that [24:35] Justice Scalia highlighted. [24:37] >> Sure. And I mean just let me clarify a [24:39] couple things that I think you just [24:41] said. Um the Reichi case what the [24:44] defendant had actually done was to say [24:47] well we have a test. the test has a [24:49] racially disperate impact, so we won't [24:51] use it and we'll make decisions another [24:53] way. And they lost. So the Supreme Court [24:57] did rule that the what you're describing [25:01] was a Title 7 violation or I guess [25:04] technically they ruled that it was a a [25:06] constitutional violation since it was a [25:08] public employer. But um and of course [25:11] Title 7 applies to public employers, but [25:12] that's a different issue. [25:13] >> Yes. They said you have to have like a [25:15] substantial basis in evidence to think [25:17] that you're going to have a disparate [25:18] impact to be able to use fear of [25:19] disparate impact liability to justify [25:22] changing your policy. [25:23] >> And of course that parallels what the [25:25] Supreme Court recently revisited in its [25:29] redistricting juristp prudence to say [25:31] that uh cannot be constitutional. So [25:34] we'll have to reinterpret our law in [25:36] order to impose rules that might be um [25:39] interestingly also drawing I believe [25:40] from inclusive communities. I should [25:42] also clean up uh inclusive communities [25:44] was not actually a title 7 case. It was [25:46] a fair housing act case. Uh the fair [25:48] housing act and title 7 have no [25:50] comparable language that one might read [25:53] in this way. Uh but set all that aside [25:56] for a moment. Okay. Um, [25:59] under current case law, as you said, uh, [26:03] any employment policy that bears [26:05] disperate impacts across Title 7's [26:06] covered demography [26:09] presumptively triggers liability unless [26:12] an employer proves the business [26:14] necessity of of the practice and that [26:17] they uh, validated that [26:20] specific policy before use. So two [26:24] questions and I'm going to throw this [26:25] open to either of you. Uh I guess first [26:29] is there any accepted definition of [26:31] business necessity anywhere? [26:34] Discuss. [26:38] >> I can start with that one Jennifer if [26:40] you don't mind. Um so I think that this [26:44] is obviously something that is [26:47] heavily debated not just among um you [26:51] know Supreme Court juris prudence but [26:54] also among the federal circuits now. So, [26:57] Jennifer started to go through a little [26:58] bit um some of the Supreme Court law [27:02] that led to the implied business [27:04] necessity. Um originally starting with [27:08] Griggs um in 1971. [27:11] Um but then there were uh two other [27:14] cases or three other cases, sorry, that [27:18] tended to talk about what actually that [27:22] implied business necessity means. Um so [27:25] we have one in 1975 that held that [27:28] employment tests have to be uh [27:31] predicative or significantly correlated [27:33] with important elements of work behavior [27:36] which compromise or are relevant to jobs [27:39] or job job or jobs for which candidates [27:42] are being evaluated. Um, and then in [27:45] 1977, the Supreme Court said that [27:48] discriminatory employment practice must [27:50] be shown to be necessary to safe and [27:53] efficient job performance to survive a [27:56] title 7 challenge. And then in 1989, the [27:59] court held that the relevant inquiry was [28:02] merely whether the challenge practice [28:04] serves in a significant way the [28:06] legitimate employment goals of that [28:08] employer. And that practice does not [28:11] need to be essential or indispensable. [28:14] But then we get the 1991 uh actual civil [28:19] rights act that Congress enacted um [28:22] which used that language consistent with [28:24] instead of required by a business [28:25] necessity. Um so there's some [28:30] question mark now about what exactly [28:32] that definition is. Um, it could be [28:36] interpreted as a legitimate business [28:38] interest more than mere convenience, but [28:41] not necessarily indispensable. [28:43] Um, but different federal circuits have [28:46] interpreted it differently. So, it can [28:49] completely depend on what circuit you're [28:50] in. Um, and you might get variable [28:53] standards here. Um, so just to give two [28:57] examples, the Ninth Circuit has said [28:59] that a business necessity defense [29:01] permits employment practices that have a [29:03] disperate impact on a protected class if [29:06] the practices have quote a manifest [29:09] relationship to the employment itself. [29:11] Um, and that actually comes from Griggs, [29:13] that original case um, that we were [29:16] talking about. And then the 11th circuit [29:18] said that an employer must establish [29:20] that the challenged employment practice [29:21] quote serves a legitimate [29:23] non-discriminatory business objective [29:26] and that even if the defendant satisfies [29:28] this burden um the plaintiff might still [29:31] prevail if they can pro prove that an [29:34] alternative non-discriminatory practice [29:36] would have served the defendant's stated [29:38] objective equally as well. Um so this [29:42] essentially means that it depends. I [29:45] don't think there is a solid definition [29:48] um that everybody can equally rely on [29:51] but it lives somewhere between it has to [29:54] be more than mere convenience for the [29:56] business um but not necessarily [30:00] indispensable. Um so that that would be [30:03] my initial answer to this to this first [30:06] question. And then just to back up [30:08] really quickly um when we're talking [30:10] about like do businesses even know what [30:12] disperate impact means? Yeah. [30:14] >> Um [30:15] >> I did just want to throw this in there [30:17] as well. The Supreme Court decided Ames [30:20] versus Ohio. Um in 2025 and that also [30:24] had a big question mark about whether [30:26] disperate impact treatment could apply [30:29] to majority groups or if it was just [30:31] minority groups. And that's something I [30:33] think that's important to keep in mind [30:35] with this conversation as well is [30:37] disperate impact typically when we think [30:39] about it is um affecting minority [30:42] groups. I think that's like just the [30:44] presumed definition because that's [30:47] typically why disperate impact was [30:49] included in federal law and otherwise is [30:53] to protect minority classes. But that's [30:56] actually not how it was written into [30:58] federal law. It says any individual um [31:01] not any individual in a minority group. [31:04] And in Ames, there was a woman who was [31:08] passed up for promotions and actually [31:10] eventually demoted because she wasn't [31:13] gay or a lesbian. Um, or at least that [31:16] was the claim in that case. And so the [31:18] court had to look at, okay, straight [31:22] people, that's a majority class, can [31:24] they claim, can this woman claim it, [31:27] make a disperate impact claim? Um and [31:29] the answer ultimately unanimously [31:31] written by um Katanji Brown Jackson was [31:35] yes that um they have to be because [31:38] there is no minority um exception or [31:42] provision in federal law. [31:44] >> Okay, let me just needle on one point [31:47] there. Um it certainly I don't it is my [31:51] memory of the Ames case that it was an [31:53] intentional discrimination case that the [31:54] allegation was that uh the plaintiff had [31:57] brought was that she had been [31:58] discriminated against on the basis of [32:01] her sexual preference. Am I wrong? Is [32:05] there a disperate impact claim there? [32:06] because I I think Justice Jackson might [32:09] write a different thing uh than she did [32:12] or uh might not be writing a unanimous [32:15] opinion were it a disperate impact case. [32:19] >> Yeah. So desperate impact actually was [32:22] discussed at length in the majority [32:25] opinion in that case. Um they do talk [32:28] about um in several footnotes kind of [32:30] what the differences in are in the [32:33] circuits. Um, and truthfully, off the [32:35] top of my head, I'm not sure what the [32:37] original claim was, if it was a [32:39] disperate impact or an intentional [32:40] discrimination claim, but it was [32:42] certainly addressed in the majority [32:43] opinion. [32:44] >> Well, I certainly have homework then. [32:45] Thank you. Um, beyond that, um, and I [32:49] think you said this, but but I I just [32:51] want to nail it down. Um, [32:54] understanding lots of courts talk the [32:56] way that you just quoted the Ninth [32:58] Circuit about the protected classes of [33:00] the statute. Are there any protected [33:02] classes under the statute or are there [33:05] only demographic lines across which [33:08] discrimination is forbidden? But [33:10] everyone everyone would be protected [33:13] equally from discrimination across any [33:16] of them. [33:18] >> I think that that's a good question. I [33:22] think that the language of the actual [33:25] statute of the federal statute [33:28] specifically talks about enumerated [33:32] classes, right? Um we have race, color, [33:35] religion, sex, and national origin. [33:39] >> It would protect [33:41] >> anyone um on that fall into those [33:44] categories. I think if that's answering [33:46] your question correctly. [33:47] >> Yeah, I I think it does. Um okay. Um, [33:51] excuse me. Um, [33:54] again a question for both of you and [33:56] anyone can feel this that feels so [33:58] moved. Um, [34:01] steelman this for me. What is the [34:03] strongest argument that any language [34:05] passed by any Congress, signed into law [34:07] by any president, requires employer [34:10] prevalidation [34:12] of each discrete employment policy that [34:15] eventually bears disperate impacts [34:17] across title 7's covered demography? [34:24] I mean I think the simple answer is [34:26] Congress put in the disperate impact [34:28] burden of proof standards which require [34:31] the challenge practice to be jobreated [34:33] and consistent with business necessity [34:35] and the only way you can really say [34:38] something is consistent with business [34:40] necessity is to make sure that the test [34:43] is doing what it's supposed to be doing. [34:45] So, if you are putting in a test that's [34:48] supposedly going to make, you know, your [34:50] firefighters better equipped to, you [34:54] know, to read or something, then you [34:57] need to actually make sure that the the [34:59] test is actually checking for reading. [35:01] And that's, you know, part of validating [35:04] that the test is doing what you're what [35:06] the test is supposed to be doing. And [35:08] so, I think that's basically the [35:09] argument. Is there any temporal element [35:12] in the language of its uh subsection 2K? [35:16] I mean that's that's where the burden [35:18] shifting language is that would imply [35:20] that this has to be done ahead of time [35:22] rather than later. Like if you ran your [35:24] if you thought this was a good idea, [35:26] hadn't anticipated it would have a [35:27] disperate impact, uh adopted a policy, [35:30] get sued, then you run lots of stuff and [35:33] prove C it was a great idea. Uh, is [35:36] there anything in the actual statutory [35:37] language that would suggest that's not [35:39] good enough? [35:40] >> Not that I can recall. [35:42] >> Okay. Um, [35:44] okay. Let me hone in on a couple [35:46] specific cases because I I think they're [35:48] interesting. I hope you do, too. Um, [35:51] there's a case in the Northern District [35:52] of California. It's a pending class [35:54] action suit, Mobly versus Workday, Inc. [35:59] Grossly oversimplifying this case and [36:02] its remarkable uh procedural status. [36:07] Uh the class pliffs [snorts] challenged [36:11] the algorithms used by a vendor to help [36:14] HR departments sort through job [36:16] applicants to identify the candidates [36:19] most likely to work out. The vendor [36:22] apparently is in involved in the hiring [36:25] in about 20% of all hiring decisions [36:28] nationwide or at least in a sample month [36:30] that appears to be the case. The [36:32] plaintiff's [36:34] live claims argue that workday's machine [36:38] learning screening system has a [36:41] disperate impact on applicants who are [36:44] African-American women older than 40 or [36:47] disabled. uh and that workday has no [36:50] business necessity that would justify [36:51] that impact. [36:55] This has gone through several motions to [36:57] dismiss and amendments and all of that. [37:00] It remains pending at this time. Um in [37:03] the district court, I guess what I'm [37:05] asking is what do you think of this [37:07] litigation? What's right? What's wrong? [37:09] Is this happening the way it should? Uh [37:12] what are the interesting issues it [37:14] poses? It's real open-ended, but what do [37:17] you think? [37:19] >> I'm happy to go first. Um, so the first [37:22] thing I think is questionable is whether [37:23] a software provider can be on the hook [37:25] for employment discrimination under [37:27] title 7 at all when the software is not [37:29] making the hiring decision. So my [37:31] understanding is that the allegation is [37:33] that the of of the like factual setup is [37:35] that the employer puts together a job [37:37] post. They feed it into this software [37:40] and they feed in the [37:43] resumeumés and the software makes a list [37:45] basically ranking who matches the job [37:47] description the best and the employer [37:49] then decides what to do with the list. [37:51] Like they they could defer to the list. [37:53] They can make their own judgments. They [37:54] can you know they can kind of do their [37:57] own assessment and then validate it [37:59] against the list. see if they, you know, [38:00] had the correct assessment, but they [38:02] aren't outsourcing the decision to the [38:04] software. So, it's a little hard to [38:06] understand at the outset how they can be [38:08] liable as an agent or of the employer if [38:11] they're not actually making the [38:12] decision. And the second thing is that [38:15] this is proceeding as a class action [38:17] despite the fact that there are so many [38:19] individual variables for each job and [38:21] each employer. So disperate impact [38:23] claims are often pressed in this sort of [38:25] class action way because the point is to [38:28] try to force a policy change, but it's [38:30] often comparing apples to oranges to [38:32] kiwis to bananas. I mean, name your [38:34] fruit. You know, each job posting is [38:36] unique. The how each employer uses the [38:39] software is going to be unique. And so [38:42] how you can lump everything together and [38:44] say that it can proceed it can proceed [38:48] under the class action framework I think [38:49] is is a real question. Um so those are [38:53] two things that just jump out at me off [38:55] the bat. [38:56] >> I think just expanding on that a little [38:58] bit um how the employers use the [39:01] software. That's what Jennifer was [39:03] talking about. Um, each time an employer [39:07] uses this system in general, they have [39:10] to enter what they're looking for in an [39:13] employee, what the job actually entails, [39:15] right? So, when these [39:19] workplaces are using this product, they [39:23] have to put in the criteria that they [39:25] want these applicants to be evaluated [39:28] by. Um obviously the criteria that um [39:32] workday is using or like the scoring [39:35] rubric or whatever it is that inside the [39:38] system that actually makes a final [39:40] recommendation and that's a key word [39:42] recommendation to the business about [39:45] whether they should accept or reject an [39:47] application for employment comes largely [39:50] from the employer. Um, and I think [39:53] that's that criteria and that scoring [39:56] rubric and how that how much the [39:58] employer is involved in that versus how [40:00] much of it comes directly from workday [40:02] is going to matter a decent amount in [40:05] this case. Um, and then that second [40:08] piece that I already flagged [40:10] recommended. Um, this this product is [40:15] essentially recommending whether the [40:16] employer should accept or reject an [40:19] application for an employment. And I [40:22] think it would be very interesting [40:23] looking at each of these individual [40:26] employers. How many of those [40:27] applications did they accept the [40:29] recommendation from? Right? How many of [40:32] the you should interview these people [40:35] did they actually interview versus how [40:37] many did they just outright reject? Are [40:39] they completely relying on the um [40:41] workday product or are they actually [40:44] evaluating on their own in some capacity [40:47] these applications? Um, so both of those [40:50] things I think are important and I'm [40:53] especially interested in the criteria [40:55] piece and and how involved the employers [40:58] are in putting that criteria into the [41:00] program ahead of time. [41:01] >> I mean, knowing only, you know, what was [41:03] pled and frankly what I didn't read all [41:05] that I'm not involved in that [41:07] litigation. I'm I'm quite sure that my [41:09] appreciation of what was pled or how it [41:11] was said is um a spectators. [41:15] With all that said, um the [41:19] wouldbe representative class plaintiffs, [41:23] uh they claim that they have repeatedly [41:28] applied for positions with employers [41:31] that use Workday and immediately [41:34] received, you know, within moments, uh [41:37] an automated response kicking out their [41:39] rejection. Um [41:44] I how automated an employer is in its [41:47] own internal assessment of whatever [41:50] product it gets from workday. I I can't [41:53] begin to tell you. Um but at least the [41:55] allegation seems to be that it happened [41:58] so fast that it must be workday that is [42:01] functionally making decisions of at [42:05] least who the bottom tier is to kick [42:06] out. I I did notice that one of the one [42:08] of those representative plaintiffs [42:11] claimed to have applied and been [42:12] rejected 2,000 times. Um [42:17] I don't know what to make of that. Uh [42:19] but like it's it's a remarkable fact. [42:21] Maybe maybe it would be an an [42:23] interesting thing. I'm not again [42:24] involved in the case uh to take dis take [42:28] discovery just for class certification [42:30] on how typical is that result because it [42:32] strikes me as remarkable and if that is [42:36] the norm of the the class as a whole I [42:39] feel like that's almost more important [42:40] than anything actually being litigated [42:42] in the case. Uh anyway uh thank you [42:45] both. Uh let me throw one more case at [42:48] you. Um this one's from New Jersey. Um, [42:54] New Jersey has long had one of the most [42:58] sweeping state non-discrimination [43:00] statutes. It's called the law against [43:02] discrimination. I I love that naming. It [43:05] is extraordinarily broad. It covers all [43:07] kinds of topics. Uh, [43:10] everything from employment and housing [43:13] to uh [43:16] access to uh public why am I blanking on [43:19] that word? uh public accommodations to [43:22] contracting uh and its laundry list of [43:25] covered kinds of demography demography [43:27] across which it bans discrimination is [43:31] far broader than federal law uh includes [43:34] all kinds of things. Um, I mention this [43:38] because the state attorney general [43:40] issued a regulation in December 2025 [43:43] reinterpreting New Jerseyy's law against [43:46] discrimination [43:48] to impose what the attorney general [43:50] described as the most comprehensive [43:51] state level disperate impact regulations [43:53] in the country. Um, historically, New [43:56] Jersey courts have read their statute as [44:01] basically paralleling federal law. [44:03] everywhere there is a federal law where [44:05] for it to overlap with. Uh the [44:08] regulation though um [44:13] was expressly written in part and [44:16] adopted when it was adopted because of [44:18] the uh al alternative opinions on law of [44:22] the current federal administration in [44:24] order to divorce the two. uh in early [44:27] September, so you know this month, the [44:31] mortgage bankers association filed a [44:32] suit challenging that regulation. Uh [44:35] interestingly, the MBA [44:38] began not by challenging the [44:40] constitutionality of disperate impact as [44:42] a whole, but very specifically with the [44:45] Supreme Court's inclusive communities [44:48] decision interpreting the Fair Housing [44:50] Act. [44:51] Now [cough] [44:53] in that case uh the Supreme Court did [44:56] impose disparate impact liability but [44:58] only with what the justices then called [45:00] constitutionally required safeguards. [45:03] things like recognizing the broad leeway [45:07] of [45:09] covered parties to challenge policies as [45:12] advancing [45:14] uh valid interest and a burden on [45:16] challengers to identify those equally [45:18] effective less discriminatory [45:20] alternatives. Uh these matter in [45:22] particular because the MBA argues the [45:24] New Jersey regulation uh both fails to [45:28] include the constitutional safeguards [45:30] identified in [45:33] inclusive communities for housing. Uh, [45:36] one of the areas that the regulation and [45:39] the law against discrimination cover. [45:41] Uh, and it also because it includes a [45:44] carve out recognizing the legitimacy and [45:47] therefore the legality of policies [45:49] adopted with an interest in achieving [45:51] diversity or increasing access for [45:54] underrepresented or underserved members [45:56] of a protected class. There's that [45:58] phrase again. Um, the theory of the MBA [46:02] is that this violates the equal [46:04] protection clause and that it also [46:06] ignores the supremacy clause given the [46:08] decisions that Congress at least as [46:10] interpreted by the Supreme Court and [46:12] inclusive communities uh has made for [46:15] this particular area. [46:18] Again, I'm going to ask this as [46:19] open-endedly as possible. Discuss what [46:22] what do you think of any of this? [46:26] I think that this ultimately goes back [46:29] to an issue that Jennifer raised very [46:31] early on in this conversation, which is [46:34] when we're talking about disperate [46:35] impact, you ultimately have to make a [46:38] decision. Do you continue to implement [46:43] facially neutral um even evenly applied [46:48] policies knowing that there could be a [46:50] disperate impact? or do you adjust your [46:54] policies to favor certain groups um so [46:58] that you don't get a disperate impact [47:01] result? Obviously, if you do the latter, [47:04] that can be a violation all on its own. [47:07] Um and often is. So, uh, just to kind [47:13] of, this is a a school example and not [47:16] an example of of a housing, but, um, [47:19] should a school try to lower, how many, [47:24] um, students of color are suspended or [47:27] expelled by not disciplining those [47:30] students the same as other students, [47:34] that is a violation. Um, that's a [47:36] disperate impact violation. That's title [47:38] six. So that's a little bit different, [47:39] but um the same principle applies here, [47:42] which is that if businesses are going to [47:45] make decisions [47:47] um trying to protect some of those [47:50] classes so that the disperate impact [47:52] theory doesn't apply, that in and of [47:54] itself can be a violation. And I think [47:57] that that's something that the MBA here [47:59] is is trying to articulate is what do [48:02] you want us to do? Um, if we apply this [48:05] even-handedly, we are facing disperate [48:08] impact claims. If we make adjustments [48:12] for um those certain [48:16] groups that um may be claiming disperate [48:20] impact, then we're still violating the [48:22] law. So, so what do we do? And I think I [48:25] think that's the crux of of the issue [48:28] here. [48:29] >> Yeah. I would just add that you know the [48:31] MBA is really picking up Justice [48:32] Scalia's torch here from Reichi saying [48:35] look you Justice Scalia said these are [48:38] on a collision course and this is the [48:40] perfect example. um the New Jersey [48:43] regulation, especially in the mortgage [48:45] lending context, it actually flips the [48:47] burden and requires a uh a mortgage [48:50] lender to affirmatively show that [48:52] there's no other policy in the world [48:54] that they could have adopted that would [48:55] serve their policies as well. And says [48:58] like it doesn't even have to be as [49:01] um efficient for the employer. I I [49:04] believe that's that's the New Jersey [49:06] regulation. At least that was the [49:07] proposal. [49:08] I I don't remember if I believe they [49:11] finalized that, but the point being [49:13] that, [49:14] you know, you're having to prove a [49:15] negative. You come in and say, "Well, I [49:17] adopted this policy. I decided to use [49:19] this software to screen applicants [49:21] because, you know, I get too many [49:24] applications. I didn't test every single [49:27] software on the market." Except now I [49:29] have to come forward and say, I tested [49:30] every single software on the market and [49:32] this was the one that had the least [49:33] disperate impact. I mean how is an [49:35] employer supposed to operate? And sure [49:37] you can think about it uh like from the [49:40] perspective of the big employers and say [49:43] well they have all sorts of resources [49:44] but you know this regulation applies to [49:47] all the employers including the smaller [49:49] employer who is using Indeed and they [49:52] get flooded with applications most of [49:54] which are not even local not good [49:56] applications and they decide oh okay I'm [49:59] I'm going to use these tools that are [50:00] available to screen them and suddenly [50:02] you know I'm on the hook or um the the [50:05] you know the mortgage bankers is that [50:07] mortgages has been have been a huge area [50:09] for disperate impact claims in the last [50:12] couple decades because often applying [50:15] sort of neutral fair lending standards. [50:18] There is a disperate impact on who is [50:20] able to get mortgages and people bring [50:23] disparate impact claims trying to get [50:25] the fair lending standards lowered and [50:27] it puts the banks in a real bind because [50:30] you know they don't want to be giving [50:31] out loans that people cannot afford to [50:34] pay back. It's bad for the pit people. [50:36] It's bad for the bank. Um, and in some [50:39] cases, you know, there are federal [50:41] regulations that prevent them from [50:42] applying lower standards, but they still [50:44] are facing these huge disperate impact [50:45] suits that can last for years and be [50:48] extremely expensive to litigate. And so, [50:51] you know, I have a lot of sympathy for [50:53] the employers in these situations that [50:55] they, you know, they need clarity from a [50:58] court as to whether New Jersey can put [51:00] them in this bind, can like force them [51:02] into a situation where they're making [51:05] race-based decisions in their business [51:07] that they don't want to be making. Like, [51:09] they just want to be thinking about [51:11] running their business. They don't want [51:12] to be thinking about unfortunate, you [51:15] know, realities about disperate impacts [51:17] that, you know, are based on societal [51:20] features, not their own. You know, if a [51:23] an apartment owner in New Jersey [51:26] decides, oh, I'm going to call, you [51:28] know, this local HVAC company to replace [51:31] my uh HVAC system in this apartment [51:35] because they're local and I've used them [51:36] before. Is that a disperate impact on an [51:38] HVAC company, you know, located in a [51:41] different part of town that has, you [51:43] know, a maybe a different racial makeup? [51:46] Probably. But is is it ridiculous for [51:48] the apartment to rely on their local [51:51] relationships? No. And so that's the [51:54] problem is businesses are put in these [51:56] situations where New Jersey is wanting [51:58] them to think about race when what they [52:01] want to do is thinking about just [52:02] running their business in a neutral and [52:04] non-discriminatory way. Let me throw [52:07] this. I'm gonna ask a couple follow-up [52:08] questions here. Um, so my colleague Gail [52:12] Harriet published first in 2013 an open [52:16] challenge to anyone to identify any real [52:19] world employment policy that has ever [52:22] been used that has no disperate impact [52:25] across any of the five kinds of title 7 [52:28] covered demography. It's been 13 years. [52:31] No one has ever found one. I should ask [52:34] you all both [52:36] are involved in this discussion. Are you [52:38] aware of anything anyone could ever do [52:41] that doesn't have a disperate impact [52:43] across one of these lines? [52:48] >> That's what comes to mind. But then [52:50] again, 13 years, I I doubt I'm going to [52:52] do better than that. [52:54] >> I mean, I kind of feel like this is [52:57] this is kind of like when scientists [52:59] discuss whether you can prove the [53:00] negative that there aren't no perpetual [53:03] motion machines, right? Like does the [53:05] fact no one has ever identified one in [53:08] itself prove it is impossible? [53:12] Draw your own conclusion there. But at [53:15] some point, most scientists stop [53:18] visiting the basement of every whack job [53:20] who says they've developed [53:22] a perpetual motion machine. And that [53:25] that might have something to tell us [53:26] here. Or just let's hone in specifically [53:28] the mortgage banker situation. And also [53:31] that applies to landlords as well. So [53:32] does the Fair Housing Act. not just the [53:34] lending side. So, so let me just Is [53:37] there [53:38] we we'll do it as a a sequence. Um [53:42] you you own an apartment and uh you [53:45] decide you should have a pet policy. [53:48] What pet policy can you have that [53:51] doesn't have a disperate impact? Can you [53:52] say all pets are allowed? No, that would [53:55] have a disperate impact across uh [53:57] national origin groups. Can you say [54:00] we're only going to allow cats? That [54:03] would definitely have a disperate impact [54:05] among other things across races and [54:08] across sexes. Could you say we're only [54:10] going to have dogs? Uh that would have [54:13] um a disperate impact across races and [54:15] sexes. Could you say we're only going to [54:17] allow large dogs? That would definitely [54:19] have a disperate impact across races and [54:22] sexes. How about only small dogs? You [54:24] you see the point? I What could you ever [54:27] set as a policy? I mean for that matter [54:29] we're talking about landlords [54:33] given the wealth of statistics out there [54:37] showing uh differences in income between [54:40] different national origin groups or uh [54:44] racial groups or sexes. Uh, can any [54:50] can any landlord ever set any price uh [54:54] as their as their rental amount per [54:57] square foot? [55:01] >> I don't think so. We made this argument [55:03] a little bit in our FCC digital [55:05] discrimination litigation where the FCC [55:08] tried to actually impose a disperate [55:09] impact standard based on income. Yeah. [55:11] And you know every pricing decision is [55:14] going to have a disperate impact on the [55:16] base of income. Now in this case we [55:17] don't have the income but there are you [55:19] know [55:20] >> but those statistics exist they collapse [55:22] almost immediately [55:24] >> and in theory it's supposed to be you [55:26] know there supposed to be a robust [55:28] causality standard where it's the policy [55:31] not societal factors that are causing [55:33] the disperate impact. But that quickly [55:36] collapses in litigation and [55:37] >> even on a rhetorical level what does [55:38] that mean? I I have literally no idea [55:41] what that means. Uh [55:45] anyway, okay. Um [55:48] I apologize for the fact we haven't [55:50] gotten into any audience questions, but [55:53] I can see we're basically out of time. [55:54] Do either of you want to throw in a [55:56] final thought for us? [55:58] >> I will just add kind of to round out the [56:00] conversation we were just having. So, [56:02] what is kind of a solution? And I think [56:05] that this is something that the federal [56:07] law is moving towards in other areas. [56:10] Um, particularly title six. I know I [56:12] already kind of mentioned that. Um, but [56:15] there is a big shift away from disperate [56:17] impact in general and towards [56:20] intentional discrimination. If groups [56:22] are going to make decisions even if [56:25] they're facially neutral but have the [56:28] purpose of um affecting a particular [56:31] group that that would still be a [56:33] situation where individuals can bring [56:35] claims and the example you gave about a [56:38] pet policy. So, if an apartment complex [56:41] wanted to have a policy specifically [56:45] allowing cats because they preferred [56:47] women tenants over men and women [56:50] statistically own cats at a higher rate, [56:52] then that would be intentional [56:54] discrimination and the disperate impact [56:56] wouldn't apply anyway because the [56:57] purpose of the policy is to discriminate [57:00] on the basis of sex. So, I just want to, [57:04] you know, kind of try and close out the [57:06] conversation of disperate impact isn't [57:08] necessarily required for these [57:10] protections to still be in place because [57:13] intentional discrimination is still an [57:14] option. Um, and in other areas of the [57:17] law, we're getting rid of that disperate [57:19] impact standard and moving solely [57:21] towards intentional discrimination. [57:24] >> Let me just um push you there. Um, [57:27] I know it is my impression that even the [57:30] most avowed opponents of independent [57:32] liability for the existence of disperate [57:34] impacts, and frankly I'm one of them, [57:36] um, would agree that [57:42] if nothing else, the existence of a [57:44] policy's disperate impact would serve as [57:47] a kind of evidence of potential intent. [57:50] Uh the Supreme Court's recognized that [57:53] since Arlington Heights in what the [57:54] 1970s [57:56] um and you know in that was in [57:59] constitutional litigation where the [58:01] court have been very clear that uh equal [58:04] protection violations mean [58:08] intentional violation, disperate [58:10] treatment uh and that a disperate impact [58:12] is insufficient in and of itself. Um to [58:16] make this a question, [58:18] you are clearly also an opponent of [58:20] independent [58:22] disperate impact liability as a concept. [58:25] Uh would you agree with me that it is [58:27] still a kind of evidence of intent? It's [58:30] just one that people have to have the [58:32] chance to rebut and that a plainif has [58:34] to have the burden of eventually [58:37] demonstrating [58:39] intent. a factor potentially. Yes. But [58:43] not the defining factor of the [58:45] discrimination. Yeah. [58:46] >> Exactly. Uh Jennifer. [58:50] >> Yep. I think that uh the Supreme Court's [58:53] been pretty clear that it disperate [58:55] impact can be a spokescreen for [58:57] intentional discrimination and that's [58:58] what Title 7 is about to is designed to [59:00] prevent. [59:01] >> Awesome. Uh and any other closing [59:03] thoughts or are we done and throwing [59:05] this back to Ann Marie? [59:10] Sounds that way. And Marie, I hope you [59:12] enjoyed. [laughter] [59:13] >> Yes, thank you both. Um, and on behalf [59:16] of the Federalist Society, I want to [59:17] thank our experts for their time and [59:19] expertise today and our audience for [59:21] joining as well. Uh, we also welcome any [59:25] listener feedback by email at fedsocck [59:28] forums.org. [59:30] And as always, keep an eye on our [59:32] website and your emails for [59:34] announcements about upcoming virtual [59:36] events. So, thank you all again for [59:38] joining us today. And we are adjourned.
