Led by the Supreme Court’s controversial new ruling ending much of the protection of minorities under federal voting rights law, the Trump Administration’s Justice Department is moving quickly to do the same to the most significant federal law banning race bias in the workplace.

In a new 25-page legal analysis, the Department adopted a government-wide policy that limits significantly the federal government’s power to outlaw racial discrimination on the job.  The policy will now require that minority workers prove that an employer specifically intended to use minorities’ race against them.  Short of that, new requirements for such claims strike the legal balance far more in favor of employers.

The policy, described as required by the Constitution, will come close to ending protection when a workplace practice – such as a background check or skills test – worsens minorities’ chances to be hired, get better work assignments, or win promotion.  That is what the law has known as practices which have a “disparate impact” on minorities, and it has been illegal under so-called Title VII since a famous Supreme Court ruling in 1971 (Griggs v. Duke Power Co.).  Congress endorsed that approach when it renewed Title VII (originally passed as part of the Civil Rights Act of 1964).

The new Justice Department document declared: “Although the Constitution now guarantees equal treatment, it has never guaranteed equal outcomes.”  A law regulating on-the-job practices does not violate the guarantee of equality “just because it may affect a greater proportion of one race than of another,” the policy paper added.

Throughout, the document relies on what the Supreme Court said in several decisions in recent weeks, sharply narrowing the scope of the Voting Rights Act, beginning with the May 29 ruling in the case of Louisiana v. Callais.  In that decision, the Court mostly ended the right of minority voters to challenge an election law that had a negative effect on them – such as reducing their chances of electing the candidates they prefer — even if the law did not discriminate intentionally on race.

The DOJ document also contains a series of quotations from the late Justice Antonin Scalia, a deeply conservative jurist who for years waged an internal battle at the Court to stop interpreting Title VII as having outlawed employment policies having a “disparate impact” on minorities.

That principle has now succeeded in the DOJ policy document issued Tuesday.  It was prepared at the request of the U.S. Equal Employment Opportunity Commission, seeking guidance on whether the Constitution permits its long-standing practice of imposing duties on employers to alter or end policies having a “disparate impact” based on race.  (The EEOC  is the government’s main enforcer of Title VII, in cases involving private employers and state and local government employers, with a more limited power over federal employers.)

Answering, the Justice Department said EEOC has been wrong over the years in pursuing a policy that imposed “liability [on employers] based on disproportionately adverse effects alone, without regard to the employer’s likely intent.”   That approach, the document said, forces employers to “engage in race-based decision-making to avoid liability [by adopting racial quotas or racial preferences].  That approach is unlawful and unconstitutional.”

The new paper came from the Justice Department’s Office of Legal Counsel.  It has the authority to issue legal opinions and analyses that then become binding on all parts of the Executive Branch.  The Office’s conclusions are not binding on the courts, however, and can be tested by lawsuits seeking to overturn them.  It seems highly likely that the new interpretation of Title VII will face such challenges.

The document did not go as far as to argue that minority workers could never file a claim that they were subjected to a job policy which had a “disparate impact” on them; the Department has no authority to specifically veto or rewrite a law or practice that Congress has adopted or mandated.  Instead, the new document gave a narrowing interpretation of EEOC’s duties in such cases under Title VII.

That was the same tactic that the Court used recently in paring down the protection given to minorities under federal voting rights law.  Just as the Court left minority voters with a continuing option to sue to protest their rights, though under more demanding legal rules, the new Justice Department document did not close the courthouse doors to minority workers under Title VII.  They can win their cases if they can meet the especially difficult task of proving that employers discriminated on purpose.  But, without that, they must proceed under the new regime dictated by the Justice Department.

The Department imposed three new requirements on the EEOC that it said are “essential to avoid the conclusion that Title VII violates the Constitution’s equal protection guarantee.”  The requirements significantly rearrange the legal steps that must be taken in a “disparate impact” case, making it easier for employers and harder for workers.   The new requirements are:

• EEOC must interpret generously the legal right of an employer to defend a challenged practice by claiming it is a “business necessity.”  The employer need only show that a workplace policy is “rational, convenient, or helpful for serving a valid business purpose.”  It said that this “is not a high bar.”
• The agency must require workers to satisfy a “robust” requirement of proof that the policy they are challenging caused them to be treated unequally, and must show that their complaint was not due instead to “external factors” beyond anything the employer had done, or was not due to some other employer action not directly related to workers’ duties or rights.
• EEOC must require workers making a “disparate impact” challenge to propose a “viable alternative” to the workplace practice at issue that will have less of a negative impact on them, and that will accomplish “just as well” the goals that the employer was seeking to achieve by adopting the practice.  Such an alternative, the document said, can be contested by the employer as too costly or not equally effective, and the employer gets the benefit of the doubt if those cost and effectiveness claims are debatable.

These requirements, according to the Department, are designed to enable the EEOC to judge the legality of the workplace practice by assessing the “competing explanations” for it.  If the worker cannot disprove those explanations, then the worker is not entitled to claim that there is only one explanation and that is a specific intent of the employer to discriminate based on race.

After spelling out the Department’s interpretation of Title VII, the legal analyses turned to the history of EEOC’s rulings and the series of enforcement guidelines and regulations that it has adopted over the years since it was created in 1964 under Title VII.

The document found that two features of that history had violated the Constitution.

First, it said, the guidelines “unconstitutionally saddle employers with onerous requirements” to validate that their policies are actually job-related, when the law as properly understood gives the benefit of the doubt that those practices are so related and that they are necessary to the operation of the business.

Second, it said, EEOC has “run into unconstitutional territory” by adopting guidelines or regulations that have encouraged employers to adopt “voluntary affirmative action” or racial preference policies as ways to head off liability for job practices that have or may have a “disparate impact” based on race.  Title VII itself does not authorize those policies, and Congress “could not constitutionally require or pressure employers to use such preferences,” the Department said.

The document was signed by two lawyers in the Office of Legal Counsel: Assistant Attorney General T. Elliott Gaiser and his deputy, Joshua J. Craddock.

The Department’s reinterpretation of Title VII and its criticism of EEOC’s enforcement history are part of President Trump’s across-the-government effort to move away from protection of minorities and from promotion of racial and other forms of cultural diversity.

Another significant federal civil rights law protects minorities from racial discrimination: Title VI, which is another part of the Civil Rights Act of 1964.  Title VI mandates racial equality in any program that receives federal funds.  However, Congress has never put into that law any protection against policies that have a “disparate impact” on minorities, and the Supreme Court has never done that by any ruling.

That provision, then, can be enforced only with proof that racial discrimination was specifically intended by those operating a program under Title VI.  The Constitution’s 14th Amendment does guarantee equality in general, but that, too, can only be enforced by proving intentional bias.