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Preserving Disparate Impact Analysis in Employment, Housing, Education, Voting Rights and Telecommunications

WHEREAS, one ofthe greatest current legal issues impacting the NAACP's mission of advancing people of color is whether a plaintiff or complainant alleging racialized harms must prove an intent to discriminate, an increasingly difficult task as efforts to discriminate become more subtle and sophisticated, or whether it is sufficient to show "disparate impact;" and

WHEREAS, disparate impact standard has been used in the U.S. Supreme Court in the landmark cases of Griggs v. Duke Power Co.; Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.; Green v. County School Board of New Kent County; and Thornburg v. Gingles regarding Title VII of the Civil Rights Act, the Fair Housing Act of 1968, school desegregation, and the Voting Rights Act of 1965, respectively;and

WHEREAS, in March 2022, the Federal Communications Commission sought public comment on whether it "should . . . establish a 'discriminatory effects' or disparate impact test" as it undertakes to observe a congressional command to eliminate discrimination in broadband deployment; and

WHEREAS, when a plaintiff or complainant is required to prove discriminatory intent, such as individual motives, a defendant or respondent can often avoid liability simply by offering a legitimate nondiscriminatory reason for the challenged actions regardless of how disparately the actions negatively affect people of color, resulting in a defendant or respondent evading liability unless the defendant or respondent has displayed racial motives; and

WHEREAS, the disparate negative impact suffered by people of color is felt precisely the same regardless of whether a plaintiff or complainant can show that the complaint of action was motivated by racial animus.

THEREFORE, BE IT RESOLVED, the NAACP supports the use of the disparate impact standard in all civil rights lawsuits.

BE IT FINALLY RESOLVED that the NAACP will disseminate this Resolution to state and federal legislators and regulators.

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