The Justice Department found that the EEOC's hiring recommendations are unconstitutional.gettyThe Justice Department’s Office of Legal Counsel (OLC) recently found that the Equal Employment Opportunity Commission’s (EEOC) hiring recommendations are unconstitutional, indicating that employers felt forced to consider race in hiring, according to The Hill. It’s not customary for the Justice Department to announce its opinion with the EEOC. The OLC’s opinion is part of a targeted effort by the Trump Administration to curtail DEI efforts and initiatives. “Honestly, [this opinion] means very little on its own,” explained David Glasgow in an email. Glasgow is the executive director of the Meltzer Center for Diversity, Inclusion, and Belonging and an adjunct professor at NYU School of Law. “President Trump already issued an executive order last year instructing agencies to deprioritize enforcement of disparate-impact claims. This opinion just goes into more legal detail on why the administration disfavors this form of liability. Workers can still file disparate impact claims on their own. But this administration has made clear (through the executive order, agency decision-making, and this latest legal opinion) that it’s not going to support such claims.”Title VII of the Civil Rights Act of 1964 was a pivotal piece of legislation that prohibits employer discrimination based on a set of protected classes that include race, color, religion, sex, and national origin. When employer-based discrimination occurs, often the type of discrimination that unfolds is categorized as disparate-impact, which occurs when “a seemingly neutral policy or action causes a disproportionate and unjustified negative harm to a group, regardless of intent.” Leslie Marant, an attorney and the founder of The ESP Effect, shared more of the history behind this legislation in an email. “Before Title VII, Duke Power openly segregated jobs. Black employees were mostly confined to the labor department. Once overt discrimination became illegal, the company imposed a high school diploma requirement and aptitude tests for access to better-paying jobs. Black workers failed those screens at significantly higher rates, and the company couldn't show that the requirements were actually necessary to perform the work.”President Lyndon B. Johnson signs the Civil Rights Act in a ceremony at the White House in 1964. Getty ImagesMarant went on to explain, “The Supreme Court looked at that situation and essentially said: wait a minute. If an employer adopts a policy that disproportionately excludes a protected group, and that policy isn't actually related to successful job performance, Title VII has something to say about it. That's where disparate impact originates. Put another way, imagine an employer says everyone has to pass a particular test. On its face, that sounds neutral. The question is what happens when the results come back. If Black applicants, women, disabled people, older workers, or other protected groups are being screened out at dramatically higher rates, the next question is whether the test is actually necessary for the job. You don't need a smoking-gun email saying, ‘Let's discriminate.’ The disparate outcome itself can trigger scrutiny.”MORE FOR YOUIn terms of what this decision could mean for workers who bring about workplace discrimination claims, Marant echoed the same sentiments as Glasgow. “The law hasn't changed. Workers can still bring disparate impact claims under Title VII. Courts can still hear those claims. Congress hasn't repealed either Title VII or the Civil Rights Act of 1991. What has changed,” Marant explained, “is the signal being sent by the federal government. The EEOC and Department of Justice appear increasingly hostile to disparate impact enforcement and will likely become less willing to investigate, pursue, or support these claims.”“Employers don't usually say, ‘We're using this policy to exclude Black workers, women, older workers, disabled workers, or other protected groups,” Marant explained. “Disparate impact liability has been one of the tools workers could use to challenge systems, tests, screening tools, promotion practices, background checks, hiring criteria, and now algorithms that produce discriminatory results even when the employer insists the policy is neutral. It also hasn't escaped me that race remains the preferred framing for many of these debates, even though disparate impact doctrine has historically reached far beyond race alone. That broader context often gets lost in the current conversation.” "The EEOC and Department of Justice appear increasingly hostile to disparate impact enforcement."gettyFor employees who file discrimination claims against their employers both Glasgow and Marant offered some useful recommendations. “Keep going. Disparate-impact liability is still embedded in the law. This is just an opinion from the DOJ and has no binding legal effect,” Glasgow said. “My advice to employees,” Marant said, “I wouldn't panic. I would pay attention. The law hasn't changed, but I would proceed as though the burden will become heavier. Cases now have to be built with more evidence, greater specificity, and closer attention to how a particular policy or practice caused a specific harm. Was it a test? A degree requirement? A background check? A promotion process? A hiring screen? A scheduling practice? What exactly was the policy? Who was affected by it? How was it applied? Was it applied consistently? What evidence exists that it created a measurable disadvantage?”“My additional advice,” Marant shared, “is to save everything. Save the job posting. Save the email. Save the performance review. Save the policy. Save the screenshot. Don’t assume you'll remember it later because you won't. Six months from now, your documentation will be far more valuable than your memory. General unfairness rarely wins cases. Specific policies, specific decisions, and specific evidence do.”