Office of Legal Counsel Issues Opinion Finding Disparate Impact Liability Under Title VII Unconstitutional

The Office of Legal Counsel has determined that the EEOC's longstanding interpretation of Title VII's disparate impact provisions violates the Constitution. The opinion contends that the EEOC's Uniform Guidelines on Employee Selection Procedures impose liability based solely on statistical disparities in employment outcomes, regardless of employer intent, which the DOJ argues functions as an unconstitutional racial-proportionality mandate. The opinion relies on recent Supreme Court decisions, particularly Allen v. Milligan, which established a "color-blind" constitutional standard. According to the DOJ analysis, this approach compels employers to engage in race-based hiring and promotion decisions to avoid liability, which itself constitutes unconstitutional discrimination. The ruling suggests that disparate impact liability should only apply when disproportionate effects give rise to a strong inference of intentional discrimination, aligning with the current Supreme Court's strict scrutiny approach to race-conscious policies.