The Department of Justice declared this week that the Equal Employment Opportunity Commission’s “disparate impact” policies are unconstitutional, tossing aside a rule, long criticized by conservatives, that saw racial discrimination whenever a policy resulted in outcomes that differed among people of different races — regardless of whether the policy had anything to do with race.
In a 25-page opinion from the DOJ’s Office of Legal Counsel on Tuesday, the DOJ found that the EEOC’s policies, which made employers susceptible to Title VII racial discrimination lawsuits if hiring or promotion outcomes are different for different races, are unconstitutional. The opinion found that EEOC policies disregarded the intention behind employers’ hiring practices, instead pressuring them into engaging in “race-based decisionmaking,” in violation of the Constitution.
“Just as it is unconstitutional for the federal government to ‘force States to engage in the very race-based discrimination that the Constitution forbids,’ so too it is unconstitutional for the federal government to coerce employers to adopt employment policies or make employment decisions motivated by race,” the OLC opinion said. “Disparate impact liability does not just raise constitutional doubt in occasional cases; unless narrowly circumscribed, it structurally compels the very racial discrimination that the Constitution forbids.”
Conservatives celebrated the OLC opinion as a significant step toward ending what they see as a destructive legal doctrine that ultimately required the type of racial discrimination it purported to ban.
“There is no point in nibbling around the edges or changing statutes,” Jeremy Carl, a senior fellow at the Claremont Institute, posted on X. “The entire concept of disparate impact is unconstitutional and must be repudiated root and branch.”
The DOJ’s opinion rested heavily on the Supreme Court’s recent ruling in Louisiana v. Callais, which raised the bar for proving racial gerrymandering claims. In Callais, which the DOJ cited several times throughout its opinion, the justices found that states can draw congressional maps without the race-based considerations courts long insisted were necessary under the Voting Rights Act.
The OLC opinion also highlighted a 2009 Supreme Court case, Ricci v. DeStefano, in which the New Haven Fire Department in Connecticut tossed out the results of a test it used to determine promotions over fear of a Title VII lawsuit, after one Hispanic and 19 white firefighters passed the test, while none of the black firefighters did. The high court ruled the decision to toss the test results was itself a Title VII violation, siding with the group of firefighters who sued the department. The Supreme Court’s 2009 ruling only dealt with the specific dispute with the firefighters, while Tuesday’s OLC opinion went further to address the legality of the EEOC’s disparate impact policies.
Frank Ricci, the lead plaintiff in the 2009 Supreme Court case, celebrated the DOJ’s Tuesday opinion as a significant win for upholding merit-based hiring practices.
“For years, politicians in robes and activists on the left have hidden behind disparate-impact theory, using allegations of statistical disparities as cover for discrimination against innocent Americans who did nothing wrong except succeed on merit,” Ricci said in a statement to the Washington Examiner. “America is better than that. We know achievement is not dictated by race, ethnicity, or any other immutable characteristic. Success is earned through hard work, merit, knowledge, skill, and determination.”
“Equal opportunity does not guarantee equal outcomes — and it was never intended to. A free and fair society judges people by their abilities and effort, not by whether statistical results satisfy political expectations,” Ricci added. “While previous administrations spoke about equal opportunity, Acting Attorney General Todd Blanche has taken action — putting President Trump’s vision into practice and reaffirming the principle that every American deserves to be judged as an individual, not as a member of a demographic group.”
The OLC opinion also garnered praise in conservative legal circles. Abhishek Kambli, a former DOJ attorney who recently left the department, praised it as a major step in the right direction.
“EEOC was already ending its reliance well before this,” Kambli said. “In fact, they got sued (and prevailed) on a lawsuit (Cross v. EEOC) challenging an internal memo that directed closure of disparate impact investigations. But it is always a major positive for OLC to weigh in as strongly as they have here.”
While the opinion from the DOJ is not as binding as a Supreme Court ruling, it could touch off a process that leads to the high court taking up a case that directly challenges disparate impact. The conservative-majority court has in recent years taken aim at policies requiring racial considerations in other contexts, such as college admissions.
Will Hild, executive director of the conservative consumer watchdog Consumers’ Research, told the Washington Examiner he believes the OLC opinion is designed to put in motion a bid to “destroy the legal doctrine of disparate impact entirely,” ending at the Supreme Court.
“I think what they want is either an appellate court or ultimately Supreme Court case asserting that finally that disparate impact is unconstitutional,” Hild said.
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The Supreme Court’s trend of striking down policies that favor equal racial outcomes, rather than equal opportunity, include the Callais decision in April and the 2023 ruling in Students for Fair Admissions v. Harvard, which struck down affirmative action for school admissions as unconstitutional. Hild noted it is “frankly hard to square more recent Supreme Court cases” with the EEOC policy of disparate impact.
The DOJ’s OLC opinion is attempting to signal to the Supreme Court that the department wants the justices to take up a case that would take a fresh look at disparate impact “based on recent precedent,” and hopefully set a lasting standard that outlaws the policy, Hild said. In the interim, Hild believes the OLC opinion tells employers that they are not beholden to disparate impact hiring standards, still offering a significant blow to the long-standing EEOC policy.