Washington — The Justice Department has formally charged the Equal Employment Opportunity Commission (EEOC) with breaching federal civil rights legislation by releasing guidelines that allegedly compel employers to incorporate race into their hiring and promotional practices.
A recent legal assessment from the Office of Legal Counsel (OLC) asserted that the concept of “disparate impact,” a discrimination framework that holds employers accountable for policies that disproportionately affect protected groups based on race, ethnicity, or gender, is unconstitutional.
“The core issue is that disparate-impact liability often encourages — and can even pressure — employers to make decisions based on race to avoid the risks associated with potential liability,” stated the opinion, co-signed by OLC Assistant Attorney General T. Elliot Gaiser and OLC Deputy Assistant Attorney General Joshua Craddock.
While this opinion does not carry the legal authority of a court decision, it is expected to complicate the efforts of employees who bring discrimination cases to the EEOC.
The Justice Department indicated that henceforth, employers can utilize tools such as aptitude assessments, criminal background screenings, and other measures without the concern of facing discrimination claims solely based on the effects those tools may have on various demographic groups.
“In striving for equality, the EEOC’s interpretation of disparate impact liability under Title VII inadvertently promotes the very discrimination it aims to rectify,” remarked Acting Attorney General Todd Blanche, who was nominated for the permanent position by President Trump earlier this week.
In response, EEOC Chair Andrea Lucas expressed her approval of the OLC’s conclusion, stating: “We believe this opinion will clarify the constitutional boundaries of disparate impact in employment discrimination cases.”
However, some former attorneys from the Civil Rights Division voiced strong opposition to the Justice Department’s legal stance. Johnathan Smith, a former deputy assistant attorney general in the division who now serves as managing director at the National Center for Youth Law, remarked, “For over five decades, the EEOC has utilized disparate impact to confront some of the most severe civil rights violations. Disparate impact is essential in uncovering patterns of discrimination and illegal conduct.”
Stacey Young, another former Civil Rights Division attorney and founder of the group Justice Connection, emphasized, “[d]iscriminatory outcomes do not always stem from overt hostility, which is why disparate impact liability has been a fundamental aspect of civil rights enforcement for decades.”
“Mandating that plaintiffs in all civil rights cases prove discriminatory intent contradicts Supreme Court jurisprudence and will likely lead to a significant rise in unchecked discrimination,” she warned.
The OLC’s opinion represents the latest challenge by the Justice Department against this legal theory, which has historically been employed by the department and other governmental entities in various civil rights cases, including those related to housing and public education.
In December, the Justice Department issued a final rule that effectively curtailed disparate impact liability under Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, and national origin in any program or activity receiving federal financial assistance.
At the time that rule was announced, Assistant Attorney General Harmeet Dhillon, who heads the Civil Rights Division, argued that the legal framework was facilitating lawsuits against “neutral policies” without any demonstrable evidence of intentional discrimination.
