The Department of Justice under President Donald Trump released an opinion on Tuesday that, if adopted by the Republican-controlled federal judiciary, would significantly increase the difficulty for plaintiffs alleging employment discrimination to succeed in court. The opinion, issued by the Office of Legal Counsel and signed by its head T. Elliot Gaiser, argues that the Supreme Court's recent decision in Louisiana v. Callais—which repealed a 1982 amendment to the Voting Rights Act—applies equally to employment anti-discrimination law.
Background of the Callais Decision
The 1982 law targeted in Callais allowed voting rights plaintiffs to challenge state election laws without proving racist intent, focusing instead on discriminatory results. For 40 years, this "results" test sometimes required states to create districts enabling minority voters to elect their preferred candidates. After Callais, white lawmakers can draw maps that elect only white Republicans as long as they claim partisan intent rather than racial targeting.
Gaiser's Opinion on Disparate Impact
Gaiser's opinion concerns the 1991 federal law permitting employment discrimination plaintiffs to prevail by showing a "disparate impact"—a practice that disproportionately affects groups based on race, color, religion, sex, or national origin. This framework resembles the pre-Callais Voting Rights Act by not requiring proof of discriminatory intent. Gaiser argues that Callais applies to disparate impact suits, likely gaining traction before a Republican Supreme Court. Quoting Callais, he asserts that liability requires a "strong inference that intentional discrimination occurred."
This conclusion has two major implications: it makes it harder for employment discrimination plaintiffs to win, and it reduces elected officials' power to remedy discrimination, leaving civil rights law primarily to the Supreme Court.
History of Disparate Impact Lawsuits
Disparate impact lawsuits predate the 1991 law. The Supreme Court first endorsed them in Griggs v. Duke Power (1971), where an employer's high school diploma requirement disproportionately excluded Black workers from higher-paying jobs. The Court ruled that such requirements must be a "reasonable measure of job performance." Congress codified this in 1991, prohibiting practices with disparate impact unless they are "job related and consistent with business necessity."
Republican judges have long been skeptical. In Ricci v. DeStefano (2009), five Republican justices rejected a challenge to a firefighter promotion exam that nearly all white applicants passed. Justice Scalia suggested the 1991 law might be unconstitutional. Despite this, the law remains valid. During the Obama administration, the DOJ used disparate impact suits against lenders like Countrywide, which paid $335 million for charging minority borrowers higher fees.
Modern Applications: AI and Hiring
Disparate impact suits are crucial for addressing biased algorithms in hiring. For example, if an employer uses AI that disproportionately screens out Black candidates without discriminatory intent, a disparate impact claim may apply. A California federal court is considering this in Mobley v. Workday, allowing the case to proceed on disparate impact grounds after rejecting intentional discrimination claims.
Anti-Democratic Implications
The Republican approach to civil rights law is fundamentally anti-democratic. While the U.S. is less racist than in 1971, racial disparities persist—median white household income was $88,010 in 2024 versus $56,020 for Black households. Normally, elected officials address such policy questions. Congress enacted the 1982 Voting Rights Act amendments and the 1991 disparate impact law to combat discrimination. However, Callais and Gaiser's opinion remove these decisions from the democratic process, granting authority to a Republican judiciary that believes racism is largely solved. It remains unclear why six Republican justices should have more insight into civil rights policy than elected representatives.
