President Donald Trump The Justice Department issued a comment Tuesday that, in the likely event it is embraced by the Republican-controlled federal court, would make it more difficult for plaintiffs who face employment discrimination to win in court.
The opinion was issued by the Office of Legal Counsel, the agency that interprets federal law and the Constitution for executive branch officials, and was signed by T. Elliot Gaiser, the head of the office. Gaiser is a former law clerk to Justice Samuel Alito, author of the Supreme Court’s recent decision in Louisiana vs. Callaiswhich repealed the 1982 amendment to the federal Voting Rights Act and sparked a new round of harassment by white Southern Republican lawmakers.
The Gaiser opinion states that Alito’s attack on the Voting Rights Act in Callis it applies with the same force as the law against discrimination in employment. And, if you agree with Alito’s opinion in Callis If it is valid, then Gaiser’s approach to employment discrimination is very difficult. Indeed, it is the next logical step in the Republican Party’s broader campaign to weaken civil rights protections for racial minorities.
Notably, the day after Gaiser made his comments, Trump’s Department of Transportation announced it it was begging Callis to its principles. So it appears that this administration wants to implement Alito’s opinion throughout the executive branch.
The 1982 law that Alito targeted Callis provided the voting rights plaintiffs who challenged the state’s election law they did not need to prove that state legislators acted with discriminatory intent to win. Under that law, which was repealed by CallisA state law that “causes” voters to be disenfranchised because of their race can also be challenged.
For 40 yearsThe Supreme Court has interpreted this “outcome” test to sometimes require states to draw the minimum number of legislative districts in which Black or Latino voters can choose the candidates of their choice. After Calliswhite legislators are now free to draw maps that will elect only white Republicans, as long as they claim that the purpose of the maps is to lock Democrats out of office and not to target voters of color.
Gaiser’s opinion, meanwhile, is about a 1991 federal law which sometimes allows a plaintiff of employment discrimination to exist if they can show that the employer engaged in “a practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” This system, known as “differential effect,” is similar to that set out inCallis The Voting Rights Act, because it sometimes allows a civil rights plaintiff to prevail without proving that the employer acted with racial discrimination or some other impermissible motive.
Considering this similarity, Gaiser’s basic argument – that CallisThe system also applies to dissenting opinions — likely to prevail in a Republican Supreme Court. Quoting from CallisGaiser says that federal employment discrimination law “imposes liability only when the circumstances give rise to it.” strong presumption that intentional discrimination occurred.”
There are two upshots to this conclusion. One is that it should be more difficult for many employment discrimination plaintiffs to prevail. Another, which may be more important, is that elected officials should lose much of their ability to correct discrimination of all kinds, and the scope of civil rights laws should be decided primarily by the Supreme Court.
The Voting Rights Act results test and the disparate effects test for employment discrimination were, after all, passed into law by Congress. But the Republican Party’s steadfast position on civil rights laws is that democratically passed civil rights laws must comply with the wishes of Republican judges.
Different effects, he explained
In fairness, disparate impact lawsuits predated Congress’s decision to authorize them in 1991. The Supreme Court first accepted the idea that employment practices that have a significant impact on minorities could be unconstitutional in its unanimous decision in Griggs vs. Duke Power (1971).
Griggs it involved an employer that had historically hired both Black and white workers who did not have a high school diploma, but limited all Black workers to lower-paying jobs. Shortly after Congress outlawed employment discrimination in 1964, this employer instituted a new policy to prevent people without a high school diploma from moving into the lowest-wage jobs, but promoted white workers without a high school education who already held higher-paying roles.
The court ruled against the employer. Although the justices agreed that there are often legitimate reasons for an employer to require its workers to have a certain level of education, the fact that white workers without a high school diploma had historically performed well in some of this employer’s higher-paying roles suggested that black workers without a high school education would also perform well in those roles.
Griggs noted that, when an educational requirement or such restriction has an adverse effect on workers of a particular community, the requirement must be “satisfactory measure of job performance.”
Congress later codified this law in a 1991 law, which prohibits employment practices that have a disparate impact on certain groups of employees, unless the employer can demonstrate “that the challenged conduct is work related to the relevant position and compatible with the business need.”
Republican judges, however, have long been skeptical of these disparate impact suits. In Ricci vs. DeStefano (2009), for example, the Court’s five Republicans rejected a case challenging a test that the city of New Haven, Connecticut, used to screen firefighters seeking promotion, even though almost all of the applicants who passed the test were white. In a separate concurring opinion, Justice Antonin Scalia suggested that the 1991 law authorizing these cases. may be unconstitutional.
But that law, and a law similar to that allows disparate impact cases in housing discrimination casesIt is still technically good law today. During the Obama administration, the DOJ used disparate impact charges against lenders accused of gross housing discrimination. Mortgage lender Nationwide, for example, agreed to pay $335 million to settle claims that “charged high fees and rates to more than 200,000 minority borrowers across the country than white borrowers who assumed the same credit risk.
Disparate impact suits can also be key to preventing employers from using biased hiring practices.
Suppose, for example, that an employer uses artificial intelligence to screen job applicants. AI has a hidden bias that disproportionately filters out Black candidates, but the employer itself has no intention of discriminating. Can an employer be sued under the disparate impact theory? A California federal court is currently grappling with this issue in a case called Mobley v. Labor Day.
Specifically, the hearing judge Mobley The case rejected the plaintiffs’ claims that employers using this AI engaged in intentional discrimination, but allowed the case to proceed on the theory of disparate impact.
The Republican Party’s approach to civil rights legislation is fundamentally anti-democratic
The question of what protections colored minorities should enjoy in housing, employment, electoral law and elsewhere is fraught. America is much less racist than it was in 1971, when Griggs It was determined that South America was still reeling from Jim Crow, but the nation is far from a bastion of racial equality.
In 2024, according to US census datathe median white household earned $88,010 in annual income, while the median black household earned only $56,020.
Typically, when America is faced with the difficult policy question of what, if anything, can be done to close the racial gap, it leaves that question to elected officials. Congress decided, when it passed the 1982 amendment to the Voting Rights Act, to prevent many states from disenfranchising Black and Latino voters from Congress. And it decided, when it passed the 1991 law to coordinate disparate impact cases, to allow those cases to continue.
The basic foundation of both Callis The decision and opinion of the Gaiser Office of Legal Counsel, however, is that these difficult policy questions should be removed from the democratic process and given to the Republican judiciary. And Republican judges believe so America has largely solved its problem of racismand thus laws such as the amended Voting Rights Act or those enabling disparate impact suits are no longer relevant.
Leaving aside whether that is the correct position, it is not clear why six Republican attorneys in black know more about American civil rights policy than the people elected by the American electorate to make these decisions.
