How Thomas Perez might use 'disparate impact' theory as labor secretary

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Politics,Beltway Confidential,Sean Higgins

I’ve posted a few pieces on this blog about how Thomas Perez, the Justice Department’s top civil rights law enforcer, arranged a highly unusual quid pro quo with the city of St. Paul, Minn.,  to get it to drop a legal challenge that was headed to the Supreme Court. Congressional Republicans are looking into the deal now that Perez is the White House’s pick to be labor secretary.

The details of the deal are eyebrow-raising enough, but the incident has a larger importance. The city’s case could have resulted in a significant Supreme Court ruling  limiting the use of the “disparate impact” theory in civil rights law. Perez is a major advocate of the theory, which sets a very low bar for proving discrimination. Under it, prosecutors need not prove intent, merely that minorities have suffered a disparate impact from some action.

A post by Ken Masugi at the free market Liberty Law Blog, explains how Perez would be able to use “disparate impact” as labor secretary:

As Secretary of Labor, Perez would have full discretion to regulate the hiring practices of virtually all employers who have federal contracts. This means companies as large as Lockheed Martin and as small as a Denver cheese maker — which are in every congressional district in the country. Note the prominent businesses among the top 200 contractors of well over 141,000, divvying up over $533 billion in federal contracts.[ii] The struggle over the Perez nomination is not only about how civil rights enforcement is to proceed but about our general attitude toward bureaucratic government. Should the laudable goal of civil rights be enforced by a despotic bureaucracy?

It is becoming distressingly clear that Perez would apply the Chicago-style politics of President Obama to not only the regulatory but the social agenda as well. Perez would achieve these radical aims through the obscure Office of Federal Contract Compliance and Programs (OFCCP), headed by a deputy assistant secretary-level Director who does not require Senate confirmation. [iii] The new Secretary of Labor will shape policy directly, as the OFCCP as of November 2009 now reports directly to his Office.

Read the whole thing here.


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Sean Higgins

Senior Writer
The Washington Examiner