As the government shutdown slows things down in Washington, D.C., the Equal Employment Opportunity Commission (EEOC) seems to be taking steps that could undermine its own mission.
A recent internal memo suggests that federal agencies responsible for enforcing employment discrimination laws are making it easier for employers to discriminate against employees. This has been reported but not yet published.
Since 1971, federal laws aimed at preventing employment discrimination have mandated that hiring practices need to accurately assess job applicants’ abilities. This aims to prevent people from being excluded based on irrelevant characteristics like race or gender, even if this wasn’t the employer’s intention.
This principle is known as disparate impact and allows workers to challenge hiring practices that unfairly exclude certain groups based on race, gender, or other unrelated characteristics. Essentially, it aims to level the playing field in the job market.
For instance, a job listing for a retail or entry-level management role might require candidates to hold a college degree. While a degree may not actually be necessary for the role, this requirement can unfairly eliminate candidates who don’t have one. Such candidates may then be able to file lawsuits against the employer.
This issue isn’t limited to hiring. Employers who determine salaries based on what a candidate earned previously, rather than the job’s value, could face similar claims and must justify the relevance of previous salaries to their current positions.
With intentional discrimination becoming harder to prove and employers using increasingly advanced technology, claims of disparate impact have become increasingly important in addressing employment discrimination.
Employers are now often using AI to screen candidates. However, these AI tools may inadvertently identify characteristics that have nothing to do with job performance, like whether someone played lacrosse in college.
Moreover, some AI systems are “black boxes,” meaning their decision-making processes are not transparent. The efficiencies gained from using AI should not undermine fair evaluations based on job-related criteria.
Despite this, the EEOC has recently begun dismissing all pending disparate impact claims without completing their investigations. Just last month, internal memos indicated that the EEOC asked employees to finalize investigations into these claims by the end of September and inform complainants that they would need to file their own lawsuits to proceed.
This move allows the EEOC to sidestep its legal obligations under laws enacted since 1964, which have prohibited discriminatory practices for decades. Notably, there have been no public announcements on the EEOC’s website addressing this shift; it seems the agency is implying that these claims lack merit.
Fortunately, civil rights laws can still be enforced by private attorneys. The Supreme Court has validated the need for state-level reliance on lawyers acting as “private attorneys general” to uphold these laws.
Workers who receive a Notice of Right to Sue should remember that if the EEOC declines to investigate, it doesn’t mean their claims are without merit. Courts continue to uphold laws that include disparate impact rulings, particularly since Congress validated such claims with legislation in 1991.
However, there’s a catch: workers who receive these notices have just 90 days to file their lawsuits, or their claims could be permanently dismissed. It’s crucial to consult an attorney experienced in these matters promptly.
While the EEOC might be walking away from established practices, legal avenues remain open for employees pursuing disparate impact claims. Don’t be discouraged by the EEOC’s current stance. If you suspect workplace discrimination—whether as an employee or a job applicant—there are still paths toward justice.
