The future of the disparate impact doctrine in the employment context just became murkier. The Department of Justice (DOJ) issued an opinion stating that Equal Employment Opportunity Commission (EEOC) guidelines on evaluating disparate impact claims were unconstitutional, arguing that they could pressure employers to engage in racial discrimination.
While the directive is not binding on courts and is not expected to have formal impact outside of EEOC cases, it could trigger a sequence of events that set the stage for the Supreme Court to receive a case that allows a conservative majority to nullify or scale back its scope.
Hugh Murray, chair of McCarter’s Labor & Employment practice, noted that although disparate impact litigation has become less common and a perfect storm may be needed to get a relevant case to the Supreme Court, he said five justices could sign on to the DOJ’s position.
While that scenario is uncertain, Hugh emphasized that the DOJ’s memo is significant as it shifts the way that government and the court are treating race classifications that have and continue to exist in this county. “Culturally, it’s a relatively big deal because it signals a big shift in the way folks in government think about and react to that,” he said. “People can argue one side or the other,…but this is part of the shift towards denying that racial classification still play a pernicious part in society.”