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With ‘disparate impact’ theory, the EEOC long ago departed from its mission to prevent discrimination.
When Congress passed the Civil Rights Act of 1964, it also created the federal Equal Employment Opportunity Commission to placate the law’s detractors and oversee its Title VII employment provisions. Over the decades, however, unelected EEOC bureaucrats came to embody everything that’s wrong with the administrative state.
Earlier this month the Justice Department moved to rein in the EEOC’s use of “disparate impact,” or racially disproportionate results, to determine whether an employer has run afoul of civil-rights statutes. “Although the Constitution now guarantees equal treatment, it has never guaranteed equal results,” Justice’s Office of Legal Counsel said in an opinion that describes the agency’s Title VII rules and guidance as unconstitutional and inconsistent with recent Supreme Court decisions.
“Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address,” acting Attorney General Todd Blanche said in a statement. “This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace.”
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Jason L. Riley is a senior fellow at the Manhattan Institute, a columnist at The Wall Street Journal, and a Fox News commentator. Follow him on Twitter here.