DOJ Rejects Theory That Pushed Employers Into DEI Quotas

The United States Department of Justice issued a “stunning” opinion, according to Berkeley Law dean Erwin Chemerinsky. He’s right, but it is probably more accurate to describe the opinion as stunning and brave.

What could the Department of Justice’s top-tier minds in their skunkworks, the Office of Legal Counsel (OLC), have done to elicit such an immediate reaction? OLC explained, in clear prose, that disparate impact violates the Constitution’s promise that everyone must be treated equally. Less than a week after the Supreme Court recommitted to our “colorblind constitution,” the DOJ doubled down in its major new opinion.

This new opinion boils down to OLC, DOJ, and the Equal Employment Opportunity Commission (EEOC), the Commission tasked with enforcing many civil rights laws, rejecting so-called “disparate impact” liability. That type of liability comes from a 1971 Supreme Court case called Griggs v. Duke Power Co. In that case, the court rejected the use of an intelligence test for hiring when that test “was not significantly related to successful job performance” and disproportionately negatively affected black applicants. 

In short: If a company’s hiring policy was neutral on its face but disproportionately affected some races, then the policy could leave the employer liable.

So by rejecting that approach, what the Office of Legal Counsel did was declare that the EEOC’s longstanding guidelines on disparate impact liability under Title VII of the Civil Rights Act of 1964 unconstitutional as applied. That is not a minor technical correction. It is a thunderclap — a return to the text, history, and original meaning of both Title VII and the Equal Protection Clause of the Fourteenth Amendment. And it follows straight on the heels of the Supreme Court’s decision in Louisiana v. Callais, which applied similar logic to race-based applications of the Voting Rights Act.

Now, obviously, the Department of Justice cannot overturn Supreme Court opinions. But for a long time, OLC opinions have been seen as a persuasive authority by both federal and state courts. Indeed, the Iowa Supreme Court just relied on an OLC opinion as support to recognize that race-based scholarships are impracticable or illegal under Iowa law. The opinions are persuasive authority to change the law.

To be clear, the opinion does not abolish disparate-impact theory entirely; instead, it cabins the doctrine to its only constitutionally permissible role: an evidentiary tool to smoke out intentional discrimination. Under the OLC’s reading — faithful to Supreme Court precedent from Washington v. Davis through Students for Fair Admissions v. Harvard — an employer may be held liable only when a challenged practice is irrational, arbitrary, or lacks any plausible connection to a legitimate business purpose.

It also explains that defending against disparate impact claims does not require much evidence. Instead, the burden shifts to would-be plaintiffs who must show a much stronger degree of causality to justify their disparate impact allegations. And the kicker, going back to Callais, is that “plaintiffs must establish with particular evidence that there is an available alternative practice that causes less disparate impact and would be equally effective for serving the employer’s valid business purpose.”

Basically, if a plaintiff cannot describe an alternative approach that reaches the same result and avoids the disparate impact, then there is no obligation to change.

That means that workplace requirements like aptitude tests, criminal background checks, or educational credentials are presumptively lawful. The burden remains on someone suing an employer to prove specific causation and to identify an equally effective, less discriminatory alternative that still serves the employer’s legitimate needs. No more judicial or bureaucratic second-guessing of business judgment. No more implicit racial quotas dressed up as “business necessity” validation studies.

Why is this opinion a significant advancement for the rule of law? First, it restores the original public meaning of Title VII of the Civil Rights Act of 1964. That law was enacted as a colorblind guarantee of individual opportunity. Indeed, the law expressly disclaims any requirement that employers grant preferential treatment to any race to maintain racial balance. The EEOC’s guidelines turned that promise upside down.

For decades, employers — especially smaller businesses and state governments — have engaged in anticipatory racial balancing to avoid multimillion-dollar lawsuits and consent decrees. The OLC opinion calls it what it is: state-compelled racial discrimination. When government actors (or government-coerced private actors) sort individuals by race to achieve proportional outcomes, they are likely violating the law.

Second, the practical consequences will be a huge boon to equality. Employers nationwide can now breathe easier. Hiring, promotions, and discipline can once again turn on qualifications instead of racial demographics. States and employers that have defended merit-based civil service systems against disparate-impact challenges will find powerful new support in federal law. Public universities, police departments, fire services, and contractors will no longer be forced to lower standards or engage in racial gerrymandering to avoid liability. The American workforce will be freer to reward excellence rather than engineered outcomes.

Critics like Dean Chemerinsky are already pushing back, claiming that the Justice Department is “gutting the protection for workers in this country to be free from race and sex bias in employment.” But that critique gets the case exactly backwards. The OLC opinion reaffirms that intentional discrimination remains flatly illegal and vigorously enforceable. What it rejects is the notion that statistical disparities alone prove racism.

As Justice Scalia once observed, the disparate-impact theory assumes that deviation from racial proportionality must be the product of discrimination. It treats racial groups as monolithic and individuals as mere representatives of their race. That is the antithesis of our colorblind Constitution.

Of course, the opinion is not self-executing. Private plaintiffs’ lawyers will test its boundaries. But the OLC’s analysis is rigorous, textually grounded, and steeped in precedent. Any court that disregards it will have to explain why the Executive Branch’s authoritative interpretation of its own statute — and of the Constitution’s commands— deserves no weight.

This opinion is a powerful reminder that the Constitution still limits even the most entrenched administrative regimes. It rejects the idea that government may pressure private citizens into racial bean-counting. It reaffirms that Title VII protects individuals, not racial groups. And it stands as a bulwark for the merit-based society that has made America the envy of the world.

Eric Wessan is the solicitor general of Iowa.