@TheJusticeDept

issued an opinion today explaining that disparate-impact liability under federal employment law is *unconstitutional*. This is an earthquake in federal civil rights law. If right, this is the foundation to overturn that pernicious regime.

he Supreme Court recently explained that we have a "colorblind Constitution." This opinion explains what is needed. First, business necessity is a *low bar* to defend against disparate impact. Second, causality is a *high bar* for plaintiffs. But the third requirement is👀

"Third, plaintiffs must establish with particular evidence that there is an available alternative practice that causes less disparate impact and would be equally effective for serving the employer’s valid business purpose." Louisiana v. Callais for employment law. Amazing!

The whole opinion is necessary reading. But I always appreciate a nice summation conclusion. This single paragraph helps to contextualize everything that came before. Read while it's hot!

Kudos to

@ElliotGaiser

and

@joshjcraddock

for putting together this logical, concise, and frankly devastating opinion for defenders of the old, illegal disparate impact regime. Great news for civil rights warrior

@andrealucasEEOC

too!

https://x.com/EWess92/status/2064380775542464920

Did you get what you voted for, Trumpkins?

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49925575)

Also, ljl at this shit where it was constitutional according to DOJ for furking decades and now cause Orange Man in office its not. Furking clown country

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49925600)

https://www.justice.gov/olc/media/1444871/dl

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49925780)

====

2011 Title IX Guidance (Campus Sexual Assault): The influential April 4, 2011, letter was issued by Russlyn Ali, who served as the Assistant Secretary for Civil Rights at the U.S. Department of Education. It instructed colleges and universities on how to handle sexual harassment and violence under Title IX, notably requiring schools to use the "preponderance of evidence" standard in disciplinary hearings.

2014 School Discipline Guidance: The January 8, 2014, joint guidance letter regarding the nondiscriminatory administration of school discipline was authored by Catherine E. Lhamon, who succeeded Ali as Assistant Secretary for Civil Rights at the Department of Education, and Jocelyn Samuels, the Acting Assistant Attorney General for the Civil Rights Division at the Department of Justice

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49926493)

then, in one or two cases, the courts seemed to hold that if it could be shown that any policy affected a racial group more strongly than it affected whites it could be a violation by the government (ie, disparate impact).

given the vast differences between groups almost all policies affect people differently. so at that point libs were hoping that the constitution required equal outcomes from all government policies. it's a holy grail for them.

as good as this move by Trump is, the next Dem administration will presumably reverse it.

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49926826)

and as you suggest, reversing that one is not easy. Dems and libs have largely relied on a stealth campaign for disparate impact in legal circles because the doctrine is so suspect. it will be hard for OLC lawyers to draft an explicit endorsement of DI theory. i wonder if they won't suggest that DI is permitted in some ill-defined contexts rather than say it's the workhorse of EP analysis.

btw, the best SCOTUS case rejecting DI was its reversal of a Sotomayor COA opinion.

the guy who wrote this piece is a bit crazy and unreliable but he does recount much of the relevant history.

===

https://reason.com/volokh/2026/06/09/office-of-legal-counsel-concludes-that-disparate-impact-liability-under-title-vii-is-unconstitutional/

Office of Legal Counsel Concludes That Disparate Impact Liability Under Title VII Is Unconstitutional

Two decades after Justice Scalia's Ricci concurrence, the "war between disparate impact and equal protection will be waged" very soon.

Josh Blackman | 6.9.2026 4:02 PM

In 2009, the Supreme Court decided Ricci v. DeStefano. The Justices reversed Judge Sonia Sotomayor's indefensible ruling against the Frank Ricci and the other firefighters. But the Court stopped short of deciding whether New Haven's attempt to avoid liability for disparate impact violated the Equal Protection Clause. Justice Scalia concurred to explain the Court was merely postponing the inevitable question:

But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how—and on what terms—to make peace between them.

Nearly two decades later, with a very different Supreme Court, this question is now primed for resolution.

Today the Office of Legal Counsel issued an opinion finding that the EEOC's Title VII guidelines are unconstitutional.

EEOC's existing interpretations, including the Uniform Guidelines on Employee Selection Procedures ("Guidelines"), embrace an unconstitutional reading of Title VII. Rather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination—imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination—EEOC's historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an employer's likely intent. Because EEOC's historic approach divorces liability from circumstances giving rise to a strong inference that intentional discrimination occurred, it functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability. That approach is unlawful and unconstitutional.

The opinion relies on Allen v. Milligan, which declared for the first time that our Constitution is "color-blind."

Three corrections to that approach are necessary "to resolve the ten-sion between [disparate-impact] claims under [Title VII] and our color-blind Constitution." Allen v. Milligan, No. 25A1314, 2026 WL 1552756, at *1 (U.S. June 2, 2026) (per curiam).

As I observed, this emergency docket opinion may become more significant than Callais, a theme that the Wall Street Journal picked up. Allen made clear that Callais applies to the Equal Protection context. Indeed, the Opinion links Callais back to the Justice Alito's TJ dissental.

Even facially race-neutral actions, when mo-tivated by the purpose of altering racial balance, constitute intentional discrimination against the members of the racial group who are balanced down. After all, "if race played a role in a decision made by a govern-ment actor," or at the behest of a government actor, then race discrimi-nation has occurred and "strict scrutiny applie[s]." Louisiana v. Callais, 146 S. Ct. 1131, 1146 (2026); see also Coal. for TJ v. Fairfax Cnty. Sch. Bd., 146 S. Ct. 541, 545 (2024) (Alito, J., dissenting from denial of certiorari).

This opinion is earth-shattering. The Department of Justice ruled that disparate-impact compels employers to engage in unconstitutional race discrimination.

Just as "the Federal Government is prohibited from discriminating on the basis of race," so too is it "prohibited from enacting laws mandating that third parties—e.g., employers, whether private, State, or munici-pal—discriminate on the basis of race," unless those laws survive strict scrutiny. Ricci, 557 U.S. at 594 (Scalia, J., concurring) (first citing Bol-ling, 347 U.S. at 500; and then citing Buchanan v. Warley, 245 U.S. 60, 78–82 (1917)). And just as it is unconstitutional for the federal govern-ment to "force[] States to engage in the very race-based discrimination that the Constitution forbids," Callais, 146 S. Ct. at 1142; see also Miller v. Johnson, 515 U.S. 900, 926–27 (1995), so too it is unconstitutional for the federal government to coerce employers to adopt employment policies or make employment decisions motivated by race. Disparate-impact liability does not just raise constitutional doubt in occasional cases; unless narrowly circumscribed, it structurally compels the very racial discrimination that the Constitution forbids.

In the same way that Callais "updated" Gingles, this opinion calls on the Court to "update" Griggs:

Reading Griggs in context and together with the Supreme Court's more recent precedent requires "updat[ing] the framework" for dispar-ate-impact liability "to ensure a constitutional reading and application of" Title VII. Callais, 146 S. Ct. at 1157, 1161 (updating the framework for claims under section 2 of the Voting Rights Act). As Justice Scalia suggested in Ricci, a properly tailored disparate-impact scheme might constitutionally operate as "an evidentiary tool" to "smoke out" practices that present a significant likelihood of intentional discrimination. 557 U.S. at 595 (Scalia, J., concurring); see also City of Rome v. United States, 446 U.S. 156, 177–78 (1980).

This is a similar approach to the one that the Supreme Court took in Callais, which held that section 2 of the Voting Rights Act of 1965, Pub. L. No. 89-110, 79 Stat. 437, "imposes liability only when the circum-stances give rise to a strong inference that intentional discrimination occurred." . . . Applying Griggs, Wards Cove, Inclusive Communities, and Callais, we identify three limiting principles on disparate-impact liability that prevent a constitutional collision under current Supreme Court prece-dent. We emphasize, as the Supreme Court has, that no single limiting principle is wholly sufficient; rather, each caveat is essential to avoid the conclusion

I suspect the EEOC will bring suit against firms that have made race-conscious decisions to avoid disparate impact suits (or more likely because they agree with separating people based on race). At that point, the constitutionality of disparate-impact is squarely teed up.

Kudos to Assistant Attorney General Elliot Gaiser and Deputy Assistant Attorney General Josh Craddock for putting forth this remarkable opinion. I also have to give credit to my Manhattan Institute colleague, Gail Heriot, who is cited throughout the opinion. Gail has been beating this sometimes-lonely drum for decades. And she has been right for decades.

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49927356)

people then debate whether it was in fact targeted towards muslim women under the guise of neutrality

(http://www.autoadmit.com/thread.php?thread_id=5872499&forum_id=2Elisa#49927354)