DOJ finds EEOC guidelines on workplace discrimination unconstitutional

The Justice Department on Tuesday found the Equal Employment Opportunity Commission’s (EEOC) hiring guidelines unconstitutional, finding they pressure employers to take race into consideration.

The opinion from the Justice Department’s Office of Legal Counsel (OLC) is not a court opinion but could nonetheless make it more difficult for employees to bring discrimination claims against their employers.

The OLC opinion targets employer liability for disparate impact if their hiring practices disproportionately harm groups protected on the basis of race, gender or another protected class.

In an unusual move, the Justice Department announced the opinion alongside the EEOC.

“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,” T. Elliot Gaiser, assistant attorney general for OLC, wrote in the opinion.

“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.”

Legal experts say the concept serves an important purpose in litigation, taking into account that policies can have a discriminatory effect, even if unintended.

“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 DOJ alumni group, 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.”

The opinion is the administration’s latest move targeting diversity, equity and inclusion (DEI) as well as other practices they argue have served to disadvantage some races at the expense of others.

Under Trump, the EEOC has launched a number of investigations into major companies and law firms to determine if their hiring practices disadvantaged white people. It also rescinded its harassment guidance, pointing to President Trump’s executive order declaring there to be two sexes.

Trump also fired the commission’s two democratic members upon taking office, leaving it without a quorum.

Acting Attorney General Todd Blanche said the opinion would “allow businesses to hire based on performance, restoring equal opportunities in the American workplace.”

“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 said in a statement.

EEOC Chair Andrea Lucas also celebrated the opinion.

“The EEOC is grateful for the thoughtful and insightful analysis,” she said in a statement.

“We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters.”

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