The usual argument I see is that group differences in outcome exist, therefore there necessarily must be discrimination somewhere causing those differences. That this discrimination can't be found is proof of how inventive the people doing the discriminating are.

Since these practices are inferred from their effects rather than directly observed, there's no list.

Imagine a city where the schools woefully underserve minority students. Despite equal budgets etc. there is a persistent gap, probably due to income gaps but that’s not the point. Within the education system there is no one institutional factor to blame.

Now imagine a civil service exam in that same city, entirely race neutral but resulting in a disparity because it tests general skills. The test is de jure racist when all it does is expose the poor education system. Because the education is so poor, the only remediation is to hire unqualified people. So you end up with a deficient civil service in the name of fairness.

There are other ways to examine whether a test or policy is racist.

Do you reject the paper's claim (that disparate impact liability makes almost everything presumptively illegal, including in situations where no one has done anything wrong), or do you think that there's no way to address plausibly-deniable intentional discrimination with less collateral damage?

Most of the criticisms of POSIWID in https://www.astralcodexten.com/p/come-on-obviously-the-purpo... seem equally applicable to your proposed corollary.

I would say that some systems are not designed to be discriminatory against a group, but since the designer blind spot for the problem might still play a part. Systems designed to be "neutral" has to be evaluated against a ideal neutral. If we find discrepancies then the system is fixed until it's as close to neutral as possible.

By ideal neutral is that their outcome aren't that disparate considering the supposed goal of the system: access to X resource, ability to accomplish X, etc.

What you’re describing is “pretext” and it’s a different thing than disparate impact.

You can find liability for pretext even when something is facially race neutral. You have to show circumstantial evidence that the race-neutral rule is being used to deliberately achieve a racist effect. Using circumstantial evidence to infer intent is pervasive in the law. Almost all criminal laws, for example, require showing intent, but obviously almost nobody ever admits their intent. It’s almost always proven indirectly.

Disparate impact is entirely different—it eliminates the requirement of “racism” altogether. Under disparate impact, there can be liability even if there is zero intent to have a racially disparate outcome. It’s like how the University of California eliminated the SAT because of disparate impact, but thousands of professors now want it back: https://www.bloomberg.com/news/articles/2026-08-06/why-a-pus...

Disparate impact has had a very negative effect by eliminating aptitude tests from the economy. As a result, employers have turned to college degree requirements to perform that sorting function. But that vastly increased the costs for ordinary people. Now you need a college degree just to be a receptionist.

> discrimination should probably only be illegal in places where there aren’t enough of the thing

That's every job everywhere as far as I can tell. There's fewer jobs that people want than people who want them.

Sure, but that looks like a page footer. If I go to the site home it's the same, so it's probably the last time the site was a whole was updated.

At least some were the result of court cases, so maybe not that trivial to reverse.