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.