Washington — The Justice Department on Tuesday accused the Equal Employment Opportunity Commission of violating federal civil rights laws by issuing guidelines that effectively pressured employers to make race-based considerations in hiring and promotions.
A new legal opinion by the Office of Legal Counsel claimed that "disparate impact" — a legal theory of discrimination that holds employers liable for discrimination for policies that disproportionately harm protected groups based on race, ethnicity or gender — is unconstitutional.
"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," said the opinion, which was signed by OLC Assistant Attorney General T. Elliot Gaiser and OLC Deputy Assistant Attorney General Joshua Craddock.
Although the opinion does not hold the same legal weight as a court ruling, it will likely make it more challenging for employees who file employment discrimination claims with the EEOC to prevail.
The Justice Department said that going forward, employers can use tools such as aptitude tests, criminal background checks and other metrics without fear that they could face discrimination claims based solely on the impact those tools may have on different demographic groups.
"Despite trying to promote equality, EEOC's disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address," said Acting Attorney General Todd Blanche, who was formally nominated to serve in the position permanently by President Trump on Monday.
"This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace," he said.
In a statement from the EEOC provided to the press by the DOJ, EEOC Chair Andrea Lucas lauded the finding, saying: "We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters."
Some former Civil Rights Division lawyers staunchly disagreed with the Justice Department's legal opinion on Tuesday.
"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," said Johnathan Smith, a former deputy assistant attorney general in the Civil Rights Division who is now a managing director at the National Center for Youth Law.
"Courts, including the Supreme Court, have long recognized the lawfulness of disparate impact and the important role it plays in ensuring equal opportunity," he added.
Stacey Young, a former Civil Rights Division lawyer who founded and leads the group Justice Connection, said "[d]iscriminatory 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 to demonstrate discriminatory intent is contrary to Supreme Court law, and will lead to a sharp increase in unchecked discrimination," she said.
The OLC's opinion marks the latest attack by the Justice Department on the legal theory, which historically has been used by the department and other government agencies in a wide variety of civil rights cases involving matters like housing and public education.
In December, the Justice Department published a final rule effectively ending 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 that receives federal financial assistance.
In a statement at the time the rule was issued, Assistant Attorney General Harmeet Dhillon, who leads the Civil Rights Division, claimed that the legal theory was paving the way for people to file lawsuits challenging "neutral policies" without providing any evidence of intentional discrimination.
