In June 2026, the Department of Justice (DOJ) released an opinion arguing that the “[Equal Employment Opportunity Commission’s] Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer’s likely intent, and pressure employers to engage in race-based decisionmaking. Properly understood, disparate-impact liability proscribes only those practices that reflect a significant likelihood of intentional discrimination.”
Twenty-seven years prior, social theorist Thomas Sowell argued that in order to have the rule of law, the rules must be “known in advance.” Disparate impact often works retroactively, which ruins this advanced knowledge. Thus, it degrades the rule of law.
As Sowell noted,
An employer cannot avoid a charge of racial discrimination merely by treating all employees and all job applicants the same regardless of their race. “Disparate impact” statistics will help determine after the fact whether the employer’s conduct is judged to be discriminatory toward minorities — or whether it represented “reverse discrimination” against some members of the majority population. Before the fact, there is often no way to know which way a court trial would turn out. In short, there is no rule of law.
Disparate impact can be used to determine discrimination based on results, not processes.
Disparate impact can be used to determine discrimination based on results, not processes. If the process was equal toward all, yet the results were not, then there is potential for discrimination to be ruled — retroactively — the cause of the disparity. To Sowell, getting judged retroactively instead of knowing the rules in advance is quite dangerous because this can lead to a “loss of confidence in the law and the courts [which] undermines civic morale and the cohesiveness of society in general.”
Sowell thus contends that you can have equal processes (rule of law) or equal results (cosmic justice), but you cannot have both. If one seeks equal results, one will inevitably mess around with the process in order to “fix” results in particular ways; the playing field will get tilted — to use an analogy of Sowell’s — in favor of some individuals and tilted out of favor for other individuals. Conversely, if one seeks equal processes (rule of law), one will inevitably have unequal results; the playing field will remain level, yet some individuals will excel more than others. (RELATED: Bolts From the Blue: Thomas Sowell and the Court)
Seeking to avoid disparate impact liability is supposed to minimize discrimination, but often it just creates discrimination. The DOJ’s opinion explains how, in Ricci v. DeStefano, a test was administered to firefighters that was “facially neutral” and “objective” to see which firefighters would get career advancements; however, the problem was that “white firefighters outperformed other firefighters on the exam,” which put the fire department in a bind: “keep the test results and potentially face disparate-impact liability, or toss the results and deny promotions to deserving candidates based solely on ‘the statistical racial disparity.’” (RELATED: The DEI Business Case Is Falling Apart)
Notice how Sowell argues that an employer can treat all applicants/employees the same and still get hit with a disparate impact violation if outcomes — such as promotions, job hires, etc. — are shown to statistically favor one protected group over another. In other words, disparate impact liability forces an employer to not treat all applicants/employees the same, but instead causes employers to finesse the process so that the outcomes are equal. The DOJ opinion recognized this problem as well: “By pressuring employers to take race-based actions in the name of proactively addressing potential statistical disparities, disparate-impact liability allows the government to engage in race discrimination indirectly.”
Of course, there are cases when an employer is engaging in discrimination that results in disparate impacts. So we should not throw out the baby with the bathwater. Instead, the DOJ’s opinion seeks to constrain disparate impact liability to make sure that it is applied correctly and does not create the very discrimination it seeks to eliminate.
To do this, the DOJ proposes three constraints on disparate-impact liability. First, “[o]nly practices . . . that have no plausible job-relatedness” qualify. In other words, liability only occurs when there is no connection between what the employer requires applicants/employees to do and the job itself.
Second, the DOJ argues that liability occurs only if the disparate impact “satisfies a robust causality requirement.” Many disparities are not caused by discrimination, as much of Sowell’s writings have shown, and thus the cause of the disparity must clearly be based in “intentional discrimination” to reach this DOJ threshold — “the plaintiff must continue to shoulder the burden of proving causation.”
Third, the “plaintiff must identify an alternative employment practice and prove both that it would have less disparate impact and be equally effective.” Again, the burden of proof lies on the plaintiff and not the employer to demonstrate this alternative solution.
Overall, this opinion from the DOJ is a step in the right direction because it constrains the application of disparate-impact statistics, statistics that could be used retroactively to scare employers into treating applicants/employees unequally. The opinion also helps restore the rule of law because it is specific in the ways in which employers could face disparate-impact liability. The rules, then, are once again “known in advance,” which is a minimum requirement for the rule of law to flourish.
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