By The Daily Caller (Opinion) | Created at 2026-06-10 21:41:16 | Updated at 2026-06-14 06:44:50
3 days ago
The Department of Justice (DOJ) has fired a shot at one of the left’s favorite means of discriminating against white people.
The DOJ revealed in a press release published Tuesday that it has issued an opinion to the Equal Employment Opportunity Commission (EEOC) determining that its disparate-impact liability guidelines are unconstitutional.
The DOJ’s Office of Legal Counsel “found that EEOC’s guidelines pressured employers to engage in racial discrimination,” as employers “could be held liable for unequal hiring and promotion outcomes among different groups, without regard to the employer’s likely intent.” (RELATED: DUKE: DOJ Nukes The Left’s Favorite Way To Enforce Racial Quotas)
Federal antidiscrimination laws broadly recognize two types of discrimination: disparate treatment and disparate impact. Disparate treatment refers to intentional discrimination on the basis of race, color, sex, or any other protected characteristic. Disparate impact refers to “seemingly neutral” policies which produce divergent outcomes between groups.
What Does Disparate Impact Look Like?
Let’s say you start a construction company. You need a team of laborers. You decide that, before hiring any prospective employees, you will ask them to take some sort of test of muscular strength and endurance.
A test of that sort might seem reasonable. I would argue it is — muscular strength and endurance is a (if not “the”) relevant factor in performing physical labor.
As it turns out, more men pass your test than women. A lot more. Because men are stronger than women, you end up rejecting a higher percentage of female applicants than you do male.
You haven’t designed the test with any sort of discriminatory intent in mind — you’re holding men and women to the same standard, after all.
Nevertheless, you may be vulnerable to a “disparate impact” lawsuit by women who you’ve declined to hire because they did not pass the test.
(The EEOC won a disparate impact sex discrimination case against a rail-based transportation company on similar grounds.)
In its opinion, the DOJ makes a commonsense case for stripping “disparate impact” of much of its power.
The DOJ writes: “Workplace requirements and selection procedures—such as background checks, aptitude tests, and SAT scores—are presumptively job-related. Only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.”
Indeed. If Hispanic candidates, generally, perform more poorly on an aptitude test than white candidates, why should an employer be forced to retire the test?
The Trump Administration just declared the EEOC’s disparate-impact regime unconstitutional.
Disparate impact forced employers to trade neutral standards for racial quotas.
This is a direct strike on one of the Left’s favorite tools for forcing racial outcomes through law. pic.twitter.com/ST4Z7tw9Ar
— Senator Eric Schmitt (@SenEricSchmitt) June 9, 2026
As the DOJ writes: “Title VII’s text guarantees equal treatment, not equal outcomes.”
A Brief History Of ‘Disparate Impact’
The Civil Rights Act of 1964 outlawed employment discrimination on the basis of race, color, religion, sex, or national origin.
The specific language of the act bars an employer from “refus[ing] to hire” a person based on one of the above characteristics.
So then, it is straightforwardly illegal for an employer to tell a Muslim, “I will not hire you because you are a Muslim.”
But let’s imagine the (devout) Muslim candidate was applying to be a Sommelier at a Michelin-starred restaurant. Would the restaurant be allowed to ask the Muslim candidate to do a blind tasting? And if the Muslim declined to do so because of his religious beliefs, would rejecting him for the position constitute employment discrimination?
In this hypothetical, the restaurant would likely win a discrimination suit filed by a rejected Muslim applicant, because of “undue hardship.” Title VII of the Civil Rights Act requires employers to “reasonably accommodate” an applicant or employee’s religious beliefs, unless doing so would impose an undue hardship on the business.
The Department of Justice has issued an opinion to the Equal Employment Opportunity Commission (“EEOC”) that its guidelines about disparate-impact liability under Title VII of the Civil Rights Act are unconstitutional. The Office of Legal Counsel found that EEOC’s guidelines… pic.twitter.com/qWveSjtvxO
— U.S. Department of Justice (@TheJusticeDept) June 9, 2026
Other cases are less clear cut. Take Griggs v. Duke Power Company (1971), which established the legal standard for “disparate impact.”
Black employees at the Duke Power Company sued their employer under Title VII, challenging the generating plant’s “requirement of a high school diploma or passing of intelligence tests as a condition of employment in or transfer to jobs at the plant.” Under these standards, black applicants were disqualified at a significantly higher rate than white employees, according to the Supreme Court.
The Supreme Court held that, because the Civil Rights Act “requires the elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race,” Duke Power Company’s employment practices were “prohibited, notwithstanding the employer’s lack of discriminatory intent.”
In Luévano v. Campbell (1981), a group of black and Hispanic applicants sued Alan Campbell, then the director of the Office of Personnel Management, along with other federal departments and agencies which had used the Professional and Administrative Career Examination (PACE) to screen candidates for federal employment. The black and Hispanic applicants, who had failed PACE, alleged that the test was a violation of civil rights law under the disparate impact standard.
The plaintiffs succeeded in destroying PACE. The Luevano Consent Decree threw out PACE and replaced it with different, more manipulable exams (which later faced legal challenges themselves). The Luevano Consent Decree established hiring programs which were explicitly intended to benefit non-whites. Those programs were The Outstanding Scholar program and the Bilingual/Bicultural program. (RELATED: SANDOVAL: Trump Just Fired A Deadly Shot At DEI — And The Legacy Media Is Totally Ignoring It)
An archived page from OPM’s website reads: “Although the Outstanding Scholar and Bilingual/ Bicultural programs are aimed at addressing underrepresentation of African Americans and Hispanics, the programs have never been restricted to those designated minority groups.”
Thankfully, the DOJ’s Civil Rights Division terminated the Luevano Consent Decree in August 2025.
For over half a century, the disparate impact standard has been used to better the job opportunities for less qualified candidates of non-white ethnicities. Disparate impact has never been a good standard to which we should hold employers. Disparate impact essentially mandates employers engage in race-conscious discrimination, lest they find themselves saddled with a lawsuit from disgruntled applicants.
I speculate (not irrationally, I think) that white people, especially white men, have endured the worst effects of disparate impact. We should rectify this vile doctrine on that basis alone.
As Gail L. Heriot wrote in “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal”: “Within just a few years of Title VII’s passage, the EEOC, concerned over the recent tumult of the 1960s, began interpreting the law to prohibit not just discrimination on the ground of race, color, religion, sex, or national origin, but also job qualifications that make it likely that proportionally fewer minority or female applicants will be hired than whites or males.”
But I will note that disparate impact is bad for competent people of non-white ethnicities. It saddles them with suspicion: Did he really earn it?
Limiting the scope of disparate impact would benefit everyone, except for incompetent candidates hoping to use their race or sex to their benefit in the hiring process.
