Conservatives have long sought to eliminate regulations with disparate effects. Donald Trump, a real estate baron whose company was sued by the Department of Justice for refusing to rent apartments to black peoplethey finally found an enthusiastic champion.

"The Trump administration is systematically undermining civil rights and efforts to fight racial discrimination," said Vanita Gupta, head of the leaders' conference on civil and human rights and former head of the ministry's civil rights division. of Justice under Obama. "A responsibility with disparate consequences may reveal disguised discriminatory intent and / or unconscious bias. And unconscious prejudices can have the same effect as declared prejudices: they can compromise the equality of chances. "

Differential impact discrimination is not a simple matter of discrete results; the divergent results alone do not prove discrimination. The regulation rather prohibits discriminatory behavior if there are other means to achieve the desired objective or if no valid interest is pursued. When the federal government alleges discrimination on the basis of disparate effects, such as a mortgage or homeowner's insurance, it performs a regression analysis to prove that, all things being equal, discrimination is at stake. The idea is to prevent such rules against discrimination.

In the early 2000s, homeowners in St. Paul, Minnesota, alleged discrimination by the city, which had insisted that their apartments have basic amenities such as heat control and parasites. They argued that the new regulations would increase housing costs or bankruptcy, which would have different consequences for minority tenants. A civil rights lawyer They described it as a ploy to assert a "fundamental right, under the Fair Housing Act, to place minorities in substandard housing." Financial institutions and insurance companies claim that regulations make innocent or benign business decisions illegal, even when companies do not take a cynical advantage of themselves.

The Supreme Court finally rendered a 5-4 decision in a separate case maintaining different impact discrimination the Fair Housing Act, but the opinion was written by Justice Anthony Kennedy. He has since been replaced by Brett Kavanaugh, who angrily warned, during his confirmation hearing, the left that "what is happening around us is decisive". Opponents of different impact rules could prevail, a second day before a trumped high court. Without such regulations, unlawful discrimination, even on a large scale, is simply to find a plausible excuse.

"Discriminatory comments by officials are still topical, but they are extremely rare," said Kristen Clarke, executive director of the Civil Rights Lawyers Committee. "The broader standard of disparate impacts allows us to challenge and remedy seemingly benign policies that have a discriminatory effect on disadvantaged groups because of historical, intentional and long-standing discrimination."