DOJ opinion declares EEOC regulations on disparate impact unconstitutional

In response to a request from the Equal Employment Opportunity Commission (EEOC) Chair Andrea Lucas, the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) on June 9 issued an opinion declaring the EEOC’s current guidance on disparate impact under Title VII of the Civil Rights Act of 1964 to be unconstitutional. 

Background 

The concept of disparate impact liability—created by the Supreme Court in Griggs v. Duke Power and incorporated into Title VII with the 1991 Civil Rights Act Amendments—has long been controversial because of the perceived clash with the Constitution’s Equal Protection Clause. Former Supreme Court Justice Antonin Scalia, in his concurrence in Ricci v. DeStefano, wrote that the Court would eventually have to confront whether disparate impact provisions of Title VII are consistent with equal protection, while the Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc. said that “serious constitutional questions” would arise if disparate impact liability were based only on statistical disparities.