In follow up to our April 24 post, a group of former EEOC Commissioners and General Counsel released a statement today, criticizing the recently issued Executive Order seeking “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible . . . .” The group’s position is that when facially neutral policies function to disproportionately exclude/negatively impact individuals in a specific protected class, and are not justified as necessary for the job, they are unlawful, undermine meritocracy, and “entrench persistent patterns of prior discrimination by maintaining unnecessary barriers that limit opportunities for individuals on grounds tied to their race, religion, sex, or national origin,” contravening Title VII’s goal of equal opportunity. The group stated:
“The description of disparate impact liability in Executive Order 14281 bears little resemblance to the actual practice of disparate impact challenges. First, the Executive Order is simply wrong in asserting that disparate impact liability results in employers using race-based preferences. Nothing in disparate impact analysis requires—or indeed permits—employers to establish a preference based on a protected characteristic. The Executive Order further announces that disparate-impact liability ‘holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.’ (emphasis added.) But the entire concept of disparate impact is that unjustified and significant differences in outcome resulting from a ‘neutral’ policy means that people of different races or sexes are not being given an equal opportunity to succeed. That is why an employer is expected to justify the policy and try to find new approaches that will meet the employer’s needs while reducing adverse outcomes. And those justifications must reflect the needs of the particular job the employer is filling; as the Supreme Court stated in Griggs, ‘Congress has commanded . . . that any tests used must measure the person for the job and not the person in the abstract.’ The Executive Order’s conclusory announcement that ‘disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers’ (emphasis added) simply has no basis in fact or law.”
See the full text of the statement here: Final+EEO+Leaders+STatement+on+Disparate+Impact.pdf