The Justice Department concluded Tuesday that a key Equal Employment Opportunity Commission (EEOC) interpretation of federal employment law is unconstitutional, arguing that it pressures employers to consider race when making hiring decisions.
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The opinion, issued by the Justice Department’s Office of Legal Counsel (OLC) and challenges the concept of disparate-impact liability under Title VII, which allows employers to face legal consequences when neutral employment policies disproportionately affect groups protected by race, sex or other classifications.
While the opinion does not carry the force of a court ruling, it could significantly influence how federal agencies approach workplace discrimination cases and may make it more difficult for employees to bring certain claims against employers.In an unusual move, the Justice Department announced the opinion jointly with the EEOC.
T. Elliot Gaiser, assistant attorney general for the Office of Legal Counsel, argued that the current interpretation of disparate-impact liability creates pressure on employers to make race-conscious decisions in order to avoid lawsuits.
“The fundamental problem is that disparate-impact liability tends to incent—and even coerce—employers to make race-based decisions to avoid liability or the threat of liability,” Gaiser wrote.
“By pressuring employers to take race-based actions in the name of proactively addressing potential statistical disparities, disparate-impact liability allows the government to engage in race discrimination indirectly,” he added.
The opinion is the latest step in the Trump administration’s effort to dismantle progressive diversity, equity and inclusion (DEI) initiatives and other policies officials claim have encouraged discrimination under the guise of promoting equality.
Acting Attorney General Todd Blanche said the opinion would help restore equal treatment in hiring decisions.
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“Allow businesses to hire based on performance, restoring equal opportunities in the American workplace,” Blanche said.
“Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address,” he added.
Under President Donald Trump, the EEOC has opened investigations into major companies and law firms to determine whether their hiring practices discriminated against white applicants. The agency has also rescinded harassment guidance, citing Trump’s executive order recognizing only two sexes under federal policy.
Civil rights advocates criticized the Justice Department’s conclusion, suggesting that disparate-impact liability has long served as a safeguard against discrimination that may not be intentional but nonetheless produces unequal outcomes.
“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,” Stacey Young, executive director of Justice Connection, a Justice Department alumni organization, said in a statement.
“Requiring plaintiffs to demonstrate discriminatory intent is contrary to Supreme Court law, and will lead to a sharp increase in unchecked discrimination,” Young added.
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