Justice Department letter questions EEOC disparate impact guidance

The Justice Department issued an opinion letter to the Equal Employment Opportunity Commission last week stating that the agency's interpretation of disparate impact liability under civil rights law is unconstitutional. The letter does not amend congressional statutes or override existing Supreme Court rulings.

It does indicate that the department intends to stop using enforcement authority to require employers to adjust hiring practices that produce unequal results across demographic groups.

Background on disparate impact doctrine Before 1971, federal courts required plaintiffs to prove that employers intentionally denied employment or promotion on the basis of race, religion, sex, or national origin. In the 1971 Griggs v. Duke Power Co.

decision, the Supreme Court held that professionally prepared aptitude tests could violate civil rights law if they produced racially disproportionate outcomes, even without evidence of intent. Congress later passed a 1991 amendment to the Civil Rights Act that required employers to demonstrate that any practice causing a disparate impact was essential to the business.

The amendment effectively overrode a 1989 Supreme Court ruling that had given employers more latitude to defend neutral practices.

Example cases In the 2009 Ricci v.

DeStefano case, the New Haven Fire Department discarded promotion test results after no Black candidates ranked in the top 15 of 118 test-takers. The Supreme Court ruled 5-4 that discarding the results constituted discrimination against the higher-scoring candidates.