Is a reading comprehension test racist if fewer black people pass it than white people? Is a pushup requirement sexist if fewer women can pass it than men? For decades, employers have faced the impossible task of identifying objective measures to analyze job applicants while also ensuring the demographics of those who pass those tests match the general population. It has been nothing short of a social and legal proscription against telling the truth.The Justice Department took a step toward ending this farce last week by issuing an opinion letter to the Equal Employment Opportunity Commission, informing the agency that its current interpretation of disparate impact liability is unconstitutional. The letter does not change congressional statute or Supreme Court precedent, but it does set the stage for the high court to resolve the contradiction between the use of disparate impact liability in employment law and the Equal Protection Clause of the Constitution.Before 1971, federal courts required plaintiffs to show that employers intentionally denied them employment or promotion due to their race, religion, sex, or national origin. That changed when the Supreme Court held in Griggs v. Duke Power Co. that facially neutral, professionally prepared aptitude tests violated civil rights law if black people disproportionately performed poorly on them. “The Act proscribes not only overt discrimination,” Chief Justice Warren Burger wrote for the majority, “but also practices that are fair in form, but discriminatory in operation.”