The Department of Justice (DOJ) has criticized a commonly used method that some argue discriminates against white individuals. In a press release, the DOJ announced it had submitted a brief to the Equal Employment Opportunity Commission (EEOC), asserting that the guidelines on disparate impact liability are unconstitutional.
The DOJ’s Office of General Counsel found that these guidelines pressure employers into racial discrimination. Essentially, employers could face liability for disparities in hiring and promotions between different groups, regardless of their intentions.
Federal anti-discrimination laws identify two main types of discrimination: disparate treatment and disparate impact. Disparate treatment involves intentional discrimination based on characteristics like race or gender, while disparate impact refers to seemingly neutral policies that lead to unequal outcomes for different groups.
For instance, if you start a construction company and require employees to pass strength and endurance tests, it might seem like a reasonable requirement. Strength is certainly relevant for physical work. However, because men tend to perform better on these tests, women could be rejected at higher rates, even if you had no intent to discriminate.
Employers could still face “disparate impact” lawsuits from women who didn’t get hired due to test results. The DOJ’s opinion points out that job-related requirements—like background checks and aptitude tests—should only create liability if they’re irrational or arbitrary.
So, if Hispanic candidates perform worse on these tests compared to white candidates, should employers be forced to eliminate testing altogether?
The DOJ emphasizes that Title VII of the Civil Rights Act guarantees equal treatment rather than equal outcomes. The law, established in 1964, prohibits discrimination based on race, religion, or gender in employment. It would be illegal for an employer to say they won’t hire someone because of their religion.
However, if a Muslim candidate applies for a sommelier role at a high-end restaurant and declines a blind tasting due to religious beliefs, the question arises: does declining the position amount to discrimination? In such cases, employers might succeed in lawsuits by showing they offered reasonable accommodations unless it would cause undue hardship.
In other instances, the legal landscape is murkier. For example, the 1971 Griggs v. Duke Power Company decision established the standard for disparate impact. Black employees at Duke Power sued over job requirements that disproportionately disqualified them compared to white applicants, leading to the Supreme Court ruling against the employer.
Similarly, in Luevano v. Campbell, black and Hispanic applicants challenged a federal employment test that had different impacts across races, ultimately leading to the scrapping of the test due to its discriminatory effects.
The DOJ has since ended a long-standing consent decree, signaling a shift in how disparate impact criteria are used. For decades, these criteria were aimed at improving job prospects for less qualified candidates from non-white backgrounds. However, the DOJ argues that this framework might compel employers to navigate complex legal challenges while inadvertently perpetuating biases.
Some might think that limiting these disparate impacts would ultimately benefit everyone. It’s not just about race or gender; it could help maintain a fair hiring process devoid of unintended consequences that harm both minority applicants and the integrity of the selection process.
