a) "just legislate that being racist/sexist to people is illegal, then have judges interpret" (which is what seems to be simply necessary to actually make progress against the endlessly inventive evil of racism/sexism),
and b) "but also don't simply make everything illegal because then abusers can selectively enforce the law to punish groups they dislike".
Tough. Gotta try, though.
The current rules are that [in specific listed contexts] you are not allowed to treat individuals differently on the basis of [explicit list of characteristics].
That's essentially your (a), except it's not up to interpretation. Pretending that it is up to interpretation is how you get things like what the article is about (in that case by measuring group statistics rather than comparing individual experiences).
Instead, I would say that discrimination should probably only be illegal in places where there aren’t enough of the thing (jobs, etc). For example, what about x-only clubs, or ladies’ nights or gyms or etc.
That's every job everywhere as far as I can tell. There's fewer jobs that people want than people who want them.
I'll additionally add in summation, there's fewer jobs that people want than people who want them.
Can you give examples of how you think there are “inventive” ways people are being racist/sexist?
Since these practices are inferred from their effects rather than directly observed, there's no list.
It's kind of a corollary to "The Purpose Of A System Is What It Does": The purpose of a policy is who it impacts. Disparate Impact recognizes this.
Most of the criticisms of POSIWID in https://www.astralcodexten.com/p/come-on-obviously-the-purpo... seem equally applicable to your proposed corollary.
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.
I think there's more solutions to that, no? The poor school might make more poor students, but statistically it probably also has some good ones too. So maybe given a basket of roughly equal candidates to a position, one can treat those with a diverse background as having a benefit, rather than looking at their school background and assuming they're unqualified or setting them aside.
If your candidates don't meet the bar then fine, but i'm not convinced that's the default case in life.
One reason is that the exam still results in disparate outcomes -- it only tests basic skills -- even though it is not in its design or operation discriminatory. It is a good example of a system that has disparate impact simply as a reflection of some other factor, outside of its control.
Your proposal is to combine the exam with a hiring evaluation that weights some factors besides scores on the exam, but "...given a basket of roughly equal candidates to a position..." is doing a lot of work in that proposal. Is that a given? Is that even likely? That depends on the underlying education system, again; and as long as those baskets of roughly equal candidates are rare, the system you propose would also have considerable disparate impact.
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.
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.