DOJ Attacks One Of The Left’s Vital Tools: ‘Disparate Impact’ Doctrine

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The Department of Justice (DOJ) has fired a shot at one of the left’s favorite means of discriminating against white people.

The DOJ revealed in a press release published Tuesday that it has issued an opinion to the Equal Employment Opportunity Commission (EEOC) determining that its disparate-impact liability guidelines are unconstitutional.

The DOJ’s Office of Legal Counsel “found that EEOC’s guidelines pressured employers to engage in racial discrimination,” as employers “could be held liable for unequal hiring and promotion outcomes among different groups, without regard to the employer’s likely intent.” (RELATED: DUKE: DOJ Nukes The Left’s Favorite Way To Enforce Racial Quotas) 

Federal antidiscrimination laws broadly recognize two types of discrimination: disparate treatment and disparate impact. Disparate treatment refers to intentional discrimination on the basis of race, color, sex, or any other protected characteristic. Disparate impact refers to “seemingly neutral” policies which produce divergent outcomes between groups. 

What Does Disparate Impact Look Like?

Let’s say you start a construction company. You need a team of laborers. You decide that, before hiring any prospective employees, you will ask them to take some sort of test of muscular strength and endurance. 

A test of that sort might seem reasonable. I would argue it is — muscular strength and endurance is a (if not “the”) relevant factor in performing physical labor. 

As it turns out, more men pass your test than women. A lot more. Because men are stronger than women, you end up rejecting a higher percentage of female applicants than you do male. 

You haven’t designed the test with any sort of discriminatory intent in mind — you’re holding men and women to the same standard, after all. 

Nevertheless, you may be vulnerable to a “disparate impact” lawsuit by women who you’ve declined to hire because they did not pass the test. 

(The EEOC won a disparate impact sex discrimination case against a rail-based transportation company on similar grounds.)

In its opinion, the DOJ makes a commonsense........

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