The US Department of Justice (DOJ) on Tuesday issued a formal legal opinion declaring the approach of the Equal Employment Opportunity Commission (EEOC) to enforcement of “disparate impact” liability to be unlawful.
The theory of disparate impact liability originated in the 1971 Supreme Court decision in Griggs v. Duke Power Co., in which it was held that employment impacts that disproportionately exclude minority candidates are illegal regardless of the employer’s intent. The doctrine of disparate impact liability was later codified under Title VII of the Civil Rights Act of 1991. Under this doctrine, the EEOC holds employers accountable for facially neutral policies that produce statistically unequal outcomes across protected groups. Last April, President Donald Trump issued an Executive Order directing the EEOC and other federal agencies to deprioritize enforcement of disparate impact claims.
Tuesday’s opinion, authored by the DOJ’s Office of Legal Counsel (OLC), argues that the EEOC’s guidelines improperly impose liability on employers for policies that produce disparate outcomes without malicious intent. The OLC’s main point of contention is that by assigning liability to strictly statistical disparities, the EEOC effectively coerces employers into engaging in race-conscious hiring decisions to avoid sanctions. Tuesday’s opinion characterizes this as a form of unconstitutional racial discrimination. The opinion leverages the recent Supreme Court decision in Allen v. Milligan, which, according to the OLC, interpreted Section 2 of the Voting Rights Act to impose liability only under “circumstances giving rise to a strong inference that intentional discrimination occurred.”
The OLC calls for a more forgiving standard for justification of workplace screening tools, with standard practices like background checks and aptitude tests to be assumed to be legitimate unless proven otherwise. The OLC further calls for a more stringent requirement for employees who bring discrimination claims to prove that a specific policy caused a specific disparity, and that an equally effective alternative option exists.
Tuesday’s opinion also concludes that two longstanding EEOC regulations are unlawful. The Uniform Guidelines on Employee Selection Procedures imposed an extensive technical process for validating hiring criteria which the opinion calls “incomprehensible” and far beyond anything required by Title VII. Affirmative Action guidelines encouraged employers to voluntarily adopt race-conscious hiring preferences as a proactive measure against liability, which the OLC says violates the Equal Protection clause.
In a statement on Tuesday, Acting Attorney General Todd Blanche elaborated on the OLC’s position:
Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address…This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace.
Critics pushed back strongly against Tuesday’s opinion. Regan Rush, former Chief of the Special Litigation Section of the DOJ’s Civil Rights Division (CRD), argued that the opinion “treats discrimination as if it only exists when someone openly admits to it.” Jonathan Smith, a former Deputy Assistant Attorney General in the DOJCRD, likewise called the opinion into question:
For over 50 years, the EEOC has relied on disparate impact to address some of the most troubling and egregious civil rights violations. Disparate impact is a vital tool in rooting out patterns of discrimination and unlawful conduct…Courts, including the Supreme Court, have long recognized the lawfulness of disparate impact and the important role it plays in ensuring equal opportunity<
Stacey Young, a former senior attorney in the CRD added:
Discriminatory outcomes don’t always result from explicit animus, which is why disparate impact liability has been a cornerstone of civil rights enforcement for decades… Requiring plaintiffs in all civil rights cases to demonstrate discriminatory intent is contrary to Supreme Court law, and will lead to a sharp increase in unchecked discrimination.
Tuesday’s OLC opinion is not binding as a matter of law. Pending future court rulings or changes to statutory provisions, workers maintain the right to bring disparate impact claims through the EEOC. However, the OLC opinion does carry weight as an expression of the Executive branch position on the subject of disparate impact, and it may signal the potential for future dormant enforcement of these claims.
