WASHINGTON, D.C. — The Department of Justice accused the Equal Employment Opportunity Commission (EEOC) of violating federal civil rights laws by issuing guidelines that pressured employers to make race-based considerations in hiring and promotions. The Office of Legal Counsel (OLC) issued a legal opinion asserting that disparate impact is unconstitutional.
Disparate impact is a legal theory that holds employers liable for policies that disproportionately affect protected groups based on race, ethnicity, or gender. Assistant Attorney General T. Elliot Gaiser and Deputy Assistant Attorney General Joshua Craddock signed the OLC legal opinion. "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 said.
The department stated that employers can utilize tools such as aptitude tests, criminal background checks, and other metrics without facing discrimination claims solely based on the impact these tools might have on different demographic groups. Acting Attorney General Todd Blanche commented on the situation. "Despite trying to promote equality, EEOC's disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address," Blanche said.
Blanche was formally nominated by the president on Monday to serve permanently in his position. "This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace," Blanche said.
EEOC Chair Andrea Lucas issued a statement regarding the OLC's finding. "We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters," Lucas said. However, the OLC opinion does not hold the same legal weight as a federal court ruling.
In December, the department published a final rule ending disparate impact liability under Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race, color, and national origin in programs or activities that receive federal financial assistance. Assistant Attorney General Harmeet Dhillon leads the Civil Rights Division. Dhillon stated that the legal theory paved the way for lawsuits challenging neutral policies without providing evidence of intentional discrimination.
No independent assessment was available for this report.