DOJ Issues Opinion on Disparate-Impact Liability
The Department of Justice’s Office of Legal Counsel (OLC) issued a Memorandum Opinion for the Chair of the Equal Employment Opportunity Commission (EEOC) stating that the EEOC’s current interpretive rules and guidance interpreting the disparate-impact provisions of Title VII of the Civil Rights Act are unconstitutional. In response to the OLC Memo, EEOC Chair Andrea Lucas stated: “We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters.” [1] In its Memo, OLC articulated the position that the EEOC’s existing guidelines are unconstitutional because “[r]ather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination —imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination —EEOC’s historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an empl...