Disparate Impact Faces Well-Deserved Extinction
“Disparate impact,” a scam theory concocted by the EEOC and—sadly—upheld by the U.S. Supreme Court (under Nixon-appointee Chief Justice Warren Burger!) in Griggs v. Duke Power Co. (1971), may be on its way to well-deserved extinction. “Disparate impact” treats statistical imbalances the same as intentional discrimination. If racial, ethnic, and other groups are “underrepresented” in a particular population—workplace, employment decisions, college admissions, voting district, etc.—the theory will treat this as evidence of intentional discrimination! The SCOTUS case, Griggs, involved an employer who required applicants to have a high school diploma (or pass a standardized general intelligence test) as a condition of employment. Black applicants disproportionately didn’t qualify. The EEOC, upheld by SCOTUS, ruled that this was a discriminatory “disparate impact” under Title VII of the Civil Rights Act of 1964. Pre-employment testing went out the window.
Merit is incompatible with DEI.
The theory has spread beyond Title VII to other fields and is responsible for racial, ethnic, and gender quotas in many areas of life—including redistricting. The problem is, disparities often exist for reasons other than prohibited discrimination. Blacks are overrepresented in the NBA; Asians are overrepresented in the Ivy Leagues; Jews are overrepresented in finance and other professions, etc. Why? Because skills, abilities, aptitude, and—yes–intelligence are not uniformly distributed among the population. Different groups excel at different things. Residential housing patterns often exhibit racial disparities due to personal preferences.
Now, based on language from Allen v. Milligan, No. 25A1314, 2026 WL 1552756, at *1 (U.S. June 2, 2026) (per curiam) (a post-Callais case allowing Alabama to proceed with redistricting), the Office of Legal Counsel of the DOJ has issued a legal opinion suggesting that “disparate impact” is unconstitutional because it violates the Constitution’s command of color blindness (or race neutrality). The relevant language from Allen v. Milligan is this:
In Louisiana v. Callais, 608 U. S. ___ (2026), to resolve the tension between vote-dilution claims under §2 of the Voting Rights Act of 1965 and our colorblind Constitution, we updated the standards for §2 liability established by Thornburg v. Gingles, 478 U. S. 30 (1986).
Court-watchers believes that this is the first time the Court has used the formulation “colorblind Constitution” (Justice Harlan’s famous phrase from his dissent in Plessy v. Ferguson) in an opinion.
The DOJ’s press release regarding the OLC’s pioneering opinion states:
The [DOJ] has issued an opinion to the Equal Employment Opportunity Commission (“EEOC”) that its guidelines about disparate-impact liability under Title VII of the Civil Rights Act are unconstitutional. The Office of Legal Counsel found that EEOC’s guidelines pressured employers to engage in racial discrimination. Under those guidelines, employers could be held liable for unequal hiring and promotion outcomes among different groups, without regard to the employer’s likely intent.
The Justice Department’s opinion for EEOC helps to implement Executive Order 14281, which rejected disparate-impact liability insofar as “it creates a near insurmountable presumption [that] unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups.”
“Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address,” said Acting Attorney General Todd Blanche. “This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace.”
This is truly a seismic development, in both employment law and constitutional law. Fifty years of folly may be coming to an end. Originalism and textualism, properly applied, will dictate abandonment of many dubious legal doctrines adopted during the make-it-up-as-you-go era of the Warren and Burger Courts.
Hooray for President Trump’s DOJ and Supreme Court.
