Is a reading comprehension test racist if fewer black people pass it than white people? Is a pushup requirement sexist if fewer women can pass it than men? For decades, employers have faced the impossible task of identifying objective measures to analyze job applicants while also ensuring the demographics of those who pass those tests match the general population. It has been nothing short of a social and legal proscription against telling the truth.
The Justice Department took a step toward ending this farce last week by issuing an opinion letter to the Equal Employment Opportunity Commission, informing the agency that its current interpretation of disparate impact liability is unconstitutional. The letter does not change congressional statute or Supreme Court precedent, but it does set the stage for the high court to resolve the contradiction between the use of disparate impact liability in employment law and the Equal Protection Clause of the Constitution.
Recommended Stories
Before 1971, federal courts required plaintiffs to show that employers intentionally denied them employment or promotion due to their race, religion, sex, or national origin. That changed when the Supreme Court held in Griggs v. Duke Power Co. that facially neutral, professionally prepared aptitude tests violated civil rights law if black people disproportionately performed poorly on them. “The Act proscribes not only overt discrimination,” Chief Justice Warren Burger wrote for the majority, “but also practices that are fair in form, but discriminatory in operation.”
The Griggs decision opened the way for a flood of lawsuits. The Supreme Court tried to fix its mistake in Wards Cove Packing Co. v. Atonio by holding that employers were not liable for discrimination if they showed their facially neutral hiring and promotion practices served “the legitimate employment goals of the employer.” But Congress stepped in to nullify this fix in 1991, passing an amendment to the Civil Rights Act requiring employers to show that any practice causing a disparate impact was “essential” to the business in question.
Since then, employers have been in the impossible situation of identifying business practices that don’t disproportionately affect minorities while also not blatantly enforcing illegal racially discriminatory quotas. This is what happened to the New Haven Fire Department in Ricci v. DeStefano. In that 2009 case, the fire department administered a test to 118 city firefighters who were seeking 15 management positions. Of the 27 black firefighters who took the test, none finished in the top 15 spots for promotion. Realizing that promoting no black applicants when black firefighters made up 22% of those taking the test would open them up to a textbook disparate-liability lawsuit, the New Haven Fire Department simply threw out the test results and promoted no one. The non-black firefighters who would have been promoted but for disparate impact liability sued, claiming discrimination under the Civil Rights Act.
Writing for a narrow 5-4 majority, Justice Anthony Kennedy held that the fire department did discriminate against non-black candidates by throwing out what had been a well-established and fair test and that the city had no reason to fear a disparate impact lawsuit. But writing for the dissent, Justice Ruth Bader Ginsburg said the test results were a textbook violation and that the fire department would have absolutely lost a disparate-impact lawsuit.
In concurrence with Kennedy, Justice Antonin Scalia agreed that throwing out the test was a violation of the Civil Rights Act, but he went a step further, saying the Ricci case perfectly demonstrated how the racial quota logic of disparate-impact lawsuits contradicted the Equal Protection Clause of the 14th Amendment, which guarantees everyone, even white people, equal protection under the law.
CALIFORNIA ELECTIONS HAVE NO INTEGRITY
The Justice Department letter to the EEOC last week just makes Scalia’s concurrence federal government policy. No longer will the commission use its enforcement power to push employers to adopt de facto racial quotas under the banner of disparate impact, which is what the Biden Justice Department did in 2024 when it sued the Maryland Department of State Police after its requirements on reading comprehension and push-ups led to a disproportionate number of black and female candidates failing its entry-level requirements.
Private plaintiffs can still make a claim of racism under the disparate impact theory, but as long as Donald Trump is president, they will not get any help from the federal government. If the Supreme Court’s recent Louisiana v. Callais decision is any indication, such plaintiffs would eventually lose in the highest federal court, too.
