The Justice Department Restores Equality

Last week, below most people’s radar, the Trump administration’s efforts to restore the original understanding of America’s most fundamental nondiscrimination laws (and, with it, American equality) took a huge step forward. You may have missed it, because no court was involved, President Trump was focused on ultimate fighting, and it didn’t involve anyone with “Secretary” at the start of his title. Instead, the Department of Justice’s Office of Legal Counsel (OLC) delivered this blow for equality, concluding that the Equal Employment Opportunity Commission (EEOC)’s disparate-impact guidelines encourage employers to engage in racial discrimination, violating the U.S. Constitution.

The OLC houses the real “lawyers’ lawyers” at DOJ, the agency's most respected analysts. OLC heads have secured appointments as Supreme Court justices (William Rehnquist and Antonin Scalia), Court of Appeals judges (Michael Luttig and Jay Bybee), Attorneys General (Nicholas Katzenbach and Bill Barr), and Solicitors General (Charles Fahy, Ted Olson, and Walter Dellinger). They start here because the OLC is the Justice Department office that issues binding opinions for the rest of the executive branch. Those opinions are formally the agency’s best prejudgment of what the executive should expect from courts as interpretations of what the law allows or requires. Functionally, the OLC serves as a kind of Supreme Court of the executive branch—and its word almost always goes.

Last week’s action was in response to EEOC Chairman Andrea Lucas’s request for the OLC to assess the constitutionality of the Commission’s current Title VII guidance documents on two topics: “disparate-impact” liability and “voluntary affirmative action” programs. (The EEOC is the federal government’s primary enforcer of unemployment discrimination laws, including Title VII of the Civil Rights Act.)

Beneath this legal jargon lies one of the most fundamental divides in American views of racial discrimination. “Disparate-impact” analysis assesses non-discriminatory employment policies: facially neutral in their treatment of different demographic groups and evenhandedly applied by employers who don’t intend to discriminate by race. It evaluates whether those policies nonetheless disproportionately affect different groups. If they do, they have a “disparate impact” and, under the EEOC’s guidance, are illegal unless they serve a “business necessity.” Based on the usual interpretation of “business necessity,” they almost never can.

On the other hand, as used here, “voluntary affirmative action” programs are policies independently adopted by employers to change the demography of their workforce. Under the EEOC’s guidance, employers could pursue such “voluntary” actions when they have a strong basis to conclude that they’d be liable (under disparate-impact analysis) if they didn’t. Together, these guidances provide a strong incentive for employers to take “voluntary” actions to produce racial balances and avoid further scrutiny of their policies.

Disparate impact started with the EEOC’s 1960s guidance, offered concerning its administration of Title VII. The Supreme Court “deferred” to the Commission’s interpretation in 1971. Since then, disparate impact has spread like mange into other areas of law.

Put that way, Chairman Lucas’s question was reasonable. Nearly two decades have passed since Justice Scalia, in Ricci v. DeStefano, lamented the Court’s choice to postpone “the evil day on which” America would have to resolve whether a disparate-impact interpretation of Title VII was “consistent with the Constitution’s guarantee of equal protection,” without answering the question. My colleague Gail Heriot has spent much of the intervening years arguing that Title VII’s disparate-impact regime is not and cannot be constitutional. A year ago, I specifically suggested that the EEOC rewrite exactly these guidance documents to harmonize them with the actual statutory text and to avoid these same serious constitutional problems.

The OLC has now given Chairman Lucas its answer. Citing Heriot’s work at least seven times, the OLC concluded—as we had argued it should—that the existing version of Title VII disparate-impact liability described in the EEOC’s guidance documents could not survive judicial scrutiny as consistent with the Constitution’s requirements.

The opinion stated: “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.” It does so, because (as Heriot has argued for years) “nearly every job qualification or hiring process has a disparate impact on members of one protected group or another.” That’s incompatible with the equal-protection requirement that governments “‘must not discriminate against a person because of his race . . . or in any way act to compel or encourage’ such discrimination by others.” The OLC concluded that “unless narrowly circumscribed,” Title VII disparate-impact liability would “compel[ ] the very racial discrimination that the Constitution forbids.”

Facing these legal facts, the OLC went searching for a “saving construction” that would avoid these constitutional problems. It scoured recent constitutional decisions (including those in Callais v. Louisiana and Allen v. Milligan) and extrapolated from them a floor that the Constitution would require of a Title VII disparate-impact regime for it to be retained. The OLC found the Court’s constitutional precedents to suggest three necessary limiting principles.

First, the “business-necessity defense” must impose a low bar for employers—not the high one required previously—and offer them significant leeway in determining whom they employ and how. Accordingly, workplace requirements and selection procedures “are presumptively job-related” enough to count as a business necessity, and only “those that have no plausible job-relatedness” should be insufficient. Simultaneously, the OLC noted that “the creation of a racially diverse workplace does not qualify [as a business necessity], because it is not race-neutral.”

Second, “any disparate-impact claim must satisfy a robust causality requirement[.]” The OLC emphasized that plaintiffs should have to plead and prove that a challenged policy, rather than external differences, caused the noted disparity.

Finally, the OLC concluded that where a challenged policy serves a legitimate end, a plaintiff must propose an alternative that would meet that goal “just as well” as the challenged policy. After all, “It is only the refusal to adopt an equally effective and administrable alternative ‘without a similarly undesirable racial effect’ that permits a strong inference that the challenged employment policy is ‘a “pretext” for discrimination.’”

The OLC’s constitutional analysis is well-grounded and persuasive. It has admirably answered the question it was asked and proposed adjustments to current Title VII disparate-impact analysis that would bring it up to the Constitution’s minimum requirements. We should applaud the OLC’s opinion for moving the ball this far and look forward to seeing the EEOC’s new replacement guidance documents. Still, before celebrating, we should bear in mind at least two major qualifications.

First, however important the OLC is within the executive branch and however persuasive its analysis might be, it remains a part of the executive branch. Its opinions never carry the precedential impact of judicial opinions. Similarly, a future OLC could always reverse even the best OLC opinion at the direction of a willful president. That’s both a straightforward requirement of Article II’s vesting clause’s empowerment of the president as our single executive and attested by the history of the OLC’s reversals of even high-profile prior decisions.

Second, it’s worth noticing that the OLC’s opinion never considers the statutory prohibitions Congress codified in Title VII. That could matter. On the one hand, Congress doesn’t always act constitutionally. On the other, before concluding that it hasn’t, Congress deserves a review of what it enacted to ensure that it actually imposed any rules failing constitutional muster. Simply put, it’s not enough to properly construe the constitutional floor; eventually, we’ll also need to determine what Congress actually passed and whether it lies above or below that floor.

At some point, these and related issues will need to be resolved, and Congress or the courts must weigh in to ensure that the OLC’s opinion endures. Sooner or later, we’ll have to address the statutory question that the OLC didn’t: whether Title VII actually bars employers from adopting nondiscriminatory policies that disproportionately affect different groups or imposes liability on employers when they do. But these remain problems for another day. For now, the OLC should be thanked, loudly and publicly, for its enormous step toward restoring equal protection and constitutional governance.