President Donald Trump’s Department of Justice released an opinion on Tuesday that, in the likely event it is embraced by a Republican-controlled federal judiciary, would make it significantly harder for plaintiffs who face employment discrimination to prevail in court.
The opinion was released by the Office of Legal Counsel, an institution that interprets federal law and the Constitution for executive branch officials, and is signed by T. Elliot Gaiser, the head of that office. Gaiser is a former law clerk to Justice Samuel Alito, author of the Supreme Court’s recent decision in Louisiana v. Callais, which repealed a 1982 amendment to the federal Voting Rights Act and greenlit a new round of gerrymandering by white Southern Republican lawmakers.
Gaiser’s opinion argues that Alito’s attack on the Voting Rights Act in Callais applies with equal force to anti-discrimination law in employment. And, if you accept Alito’s opinion in Callais as legitimate, then Gaiser’s approach to employment discrimination is hardly a stretch. Indeed, it is the next logical move in the Republican Party’s broader campaign to weaken civil rights protections for racial minorities.
Notably, one day after Gaiser released his opinion, Trump’s Department of Transportation announced that it was applying Callais to its regulations. So it appears that this administration wants to implement Alito’s views throughout the executive branch.
The 1982 law that Alito targeted in Callais provided that voting rights plaintiffs who challenged a state election law did not need to prove that state lawmakers acted with racist intent in order to prevail. Under that law, which was repealed by Callais, a state law that “results” in voters having their right to vote diminished due to their race may also be challenged.
For 40 years, the Supreme Court interpreted this “results” test to sometimes require states to draw a minimum number of legislative districts where Black or Latino voters can elect their candidates of choice. After Callais, white lawmakers are now free to draw maps that will only elect white Republicans, so long as they claim that the purpose of those maps is to lock Democrats out of power and not to target voters of color.
Gaiser’s opinion, meanwhile, concerns a 1991 federal law that sometimes permits an employment discrimination plaintiff to prevail if they can show that an employer engages in a “practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.” This framework, which is known as “disparate impact,” is similar to the one laid out in the pre-Callais Voting Rights Act, because it sometimes permits a civil rights plaintiff to prevail without proving that the employer acted with racist or otherwise impermissible intent.
Given these similarities, Gaiser’s core argument — that Callais’s framework also applies to disparate impact suits — is likely to prevail before a Republican Supreme Court. Quoting from Callais, Gaiser argues that federal employment discrimination law “imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.”
There are two upshots to this conclusion. One is that it should be significantly harder for many employment discrimination plaintiffs to prevail. The other, which is potentially even more significant, is that elected officials should lose much of their power to remedy discrimination of all kinds, and the scope of civil rights law should be determined primarily by the Supreme Court.
Both the Voting Rights Act’s results test and employment discrimination’s disparate impact test, after all, were enacted into law by Congress. But the Republican Party’s consistent position on civil rights laws is that democratically enacted civil rights laws must bow to the whims of Republican justices.
Disparate impact, explained
In fairness, disparate impact lawsuits predate Congress’s decision to endorse them in 1991. The Supreme Court first embraced the idea that employment practices that have a disproportionate impact on racial minorities may be illegal in its unanimous decision in Griggs v. Duke Power (1971).
Griggs involved an employer who had historically employed both Black and white workers who did not have a high school diploma, but it restricted all Black workers to the lowest-paying jobs. Shortly after Congress banned employment discrimination in 1964, this employer instituted a new policy preventing people without a high school diploma from transferring out of the lowest paying jobs, but it grandfathered in white employees without a high school education who were already in higher paying roles.
The Court ruled against the employer. While the justices acknowledged that there are often valid reasons for an employer to require its employees to have a certain level of education, the fact that white workers without a high school diploma had historically performed well in some of this particular employer’s higher-paying roles suggested that Black workers without a high school education would also perform well in those roles.
Griggs established that, when an education requirement or similar barrier has a disproportionate negative impact on workers of a particular race, the requirement must actually be “a reasonable measure of job performance.”
Congress later codified this rule in the 1991 law, which forbids employment practices that have a disparate impact on certain groups of workers, unless the employer can show “that the challenged practice is job related for the position in question and consistent with business necessity.”
Republican judges, however, have long been skeptical of these disparate impact suits. In Ricci v. DeStefano (2009), for example, five of the Court’s Republicans rejected a lawsuit challenging an exam that the city of New Haven, Connecticut, used to screen firefighters seeking a promotion, even though nearly all of the applicants who passed the test were white. In a separate concurring opinion, Justice Antonin Scalia suggested that the 1991 law endorsing these suits may be unconstitutional.
But that law, and a similar law that permits disparate impact suits in housing discrimination cases, are still technically good law today. During the Obama administration, the DOJ used disparate impact lawsuits against lenders accused of widespread housing discrimination. The mortgage lender Countrywide, for example, agreed to pay $335 million to settle a claim that it “charged higher fees and rates to more than 200,000 minority borrowers across the country than to white borrowers who posed the same credit risk.”
Disparate impact suits may also be key to preventing employers from using biased algorithms in hiring.
Suppose, for example, that an employer uses artificial intelligence to screen job applicants. The AI has a hidden bias that disproportionately screens out Black candidates, but the employer itself has no discriminatory intent. Can the employer be sued under a disparate impact theory? A California federal court is currently wrestling with this issue in a case called Mobley v. Workday.
Notably, the judge hearing the Mobley case rejected the plaintiffs’ claim that employers who use this AI engaged in intentional discrimination, but allowed the case to move forward on a disparate impact theory.
The Republican Party’s approach to civil rights law is fundamentally anti-democratic
The question of what protections racial minorities should enjoy in housing, employment, election law, and elsewhere is fraught. The United States is a much less racist place than it was in 1971, when Griggs was decided and the American South was still clawing its way out of Jim Crow, but the nation is far from a bastion of racial equality.
In 2024, according to US census data, the median white household earned $88,010 in annual income, while the median Black household earned just $56,020.
Ordinarily, when the United States faces a difficult policy question like what, if anything, should be done to close racial gaps, it leaves that question to elected officials. Congress decided, when it enacted the 1982 amendments to the Voting Rights Act, to prevent many states from locking Black and Latino voters out of power in Congress. And it decided, when it enacted the 1991 law codifying disparate impact lawsuits, to permit those lawsuits to move forward.
The fundamental premise of both the Callais decision and Gaiser’s Office of Legal Counsel opinion, however, is that these difficult policy questions should be removed from the democratic process and given to a Republican judiciary. And the Republican justices believe that America has largely solved its racism problem, and so laws like the amended Voting Rights Act or the ones enabling disparate impact suits are no longer necessary.
Setting aside whether that is the correct position, it is far from clear why six Republican lawyers in black robes have more insight into US civil rights policy than the people American voters elected to make these decisions.
