DOJ finds EEOC guidelines on workplace discrimination unconstitutional

The Justice Department on Tuesday found the Equal Employment Opportunity Commission’s (EEOC) hiring guidelines unconstitutional, finding they pressure employers to take race into consideration.

The opinion from the Justice Department’s Office of Legal Counsel (OLC) is not a court opinion but could nonetheless make it more difficult for employees to bring discrimination claims against their employers.

The OLC opinion targets employer liability for disparate impact if their hiring practices disproportionately harm groups protected on the basis of race, gender or another protected class.

In an unusual move, the Justice Department announced the opinion alongside the EEOC. 

“The fundamental problem is that disparate-impact liability tends to incent—and even coerce—employers to make race-based decisions to avoid liability or the threat of liability,” T. Elliot Gaiser, assistant attorney general for OLC, wrote in the opinion.

“By pressuring employers to take race-based actions in the name of proactively addressing potential statistical disparities,........

© The Hill