For over 50 years, the doctrine of “disparate impact” has shaped employment law in America.
The U.S. Supreme Court ruled in Griggs v. Duke Power Co. (1971) that an employer could violate Title VII of the Civil Rights Act even without any intent to discriminate.
Several black employees at Duke Power sued the company for requiring employees to take aptitude tests for promotions to certain positions. Black employees failed the tests at higher rates than white employees. The high court ruled that such job requirements had a disparate impact on black employees, and, therefore, were illegal unless related to job performance.
The decision established disparate impact liability: a policy may be considered discriminatory based on its results, even if it is racially neutral and adopted without discriminatory intent.
The Equal Employment Opportunity Commission (EEOC) incorporated disparate impact liability into its enforcement guidelines. This meant that hiring and promoting based on merit could get companies sued.
Now, the Trump administration has concluded that disparate impact liability violates the Civil Rights Act. The U.S. Department of Justice (DOJ) told the EEOC that the agency’s guidelines are unconstitutional. From the DOJ:
The Justice Department’s opinion for EEOC helps to implement Executive Order 14281, which rejected disparate-impact liability insofar as “it creates a near insurmountable presumption [that] unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups.”
Federal law is supposed to guarantee equal opportunity, not equal outcomes.
“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 Todd Blanche, acting U.S. attorney general. “This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace.”
The old 1960s civil rights era paradigm has shifted in employment law. Intent matters.
“Employment practices are presumptively job-related, and only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.”
A criminal background check, for example, is not presumed to be discriminatory just black applicants or employees may fail to pass at higher rates.
