A new Justice Department opinion letter that sharply criticizes the EEOC’s disparate impact guidance sets the stage for significant policy shifts at the agency.
The opinion letter, from the DOJ’s Office of Legal Counsel (OLC), concludes that the EEOC’s interpretations of Title VII disparate impact liability are unconstitutional because they “contemplate liability based on disparate effects alone, without regard to an employer’s likely intent.”
The opinion letter states that (1) employers must be allowed to defend against disparate impact liability by showing that their challenged practice reasonably serves a valid business purpose; (2) plaintiffs must show that the policy caused a disparate impact; and (3) plaintiffs must show that the employer had an equally effective alternative.
The opinion also concludes that EEOC validation study regulations, affirmative action guidance, and portions of the Uniform Guidelines are inconsistent with Title VII and the Constitution.
OLC opinions bind the executive branch, so the EEOC is expected to align its enforcement positions and guidance with the opinion. Employers should anticipate rescission or significant revision of EEOC materials, including the Uniform Guidelines.
Members of the Center for Workplace Compliance (CWC), our affiliated nonprofit membership association, can read more here.