DOJ Says EEOC Guidance on Unintentional Bias Is Unconstitutional: 5 Things Employers Need to Know
The Trump administration has continued its efforts to step back from enforcing “unintentional” workplace bias liability and is focused on intentional discrimination instead. The EEOC announced earlier this month that it would continue to only prioritize enforcement in intentional discrimination cases (known as disparate treatment liability ), with a focus on bias in DEI programs. The agency will not focus on workplace discrimination stemming from a policy or practice that unintentionally discriminates against a population of employees (which is known as disparate impact liability ). Notably, the Department of Justice (DOJ) backed that position in a June 9 memo giving its opinion that the disparate impact theory of liability is likely unconstitutional. According to the DOJ, the government has been holding employers to an unfairly high standard when it comes to defending everyday workplace practices like background checks, skills tests, and education requirements . The DOJ’s position h...