Even as work grinds to a halt in Washington, D.C., due to the government shutdown, the Equal Employment Opportunity Commission is taking additional steps to undermine its mission.
The primary federal agency charged by Congress with enforcing federal employment discrimination laws recently made it easier for employers to discriminate against workers, according to a new internal memo. Reported but not yet publicly released,
since 1971Federal laws prohibiting employment discrimination (as interpreted by the Supreme Court) require employers to use hiring practices that accurately measure job applicants’ ability to do the job. Its purpose is to exclude people from jobs because of irrelevant characteristics such as their race or gender, even if such exclusion was not intended.
“Referred to as”disparate impact“The rule, it enables workers to challenge employment practices that disproportionately exclude groups of people based on race, gender, or other protected, non-job-related characteristics, where there are no valid measures of who can do the work.
In short, this means that arbitrary barriers to job applicants have historically been eliminated, and when this has not happened, employees have been able to bring discrimination claims. This means that equal opportunities are available to everyone in the job market.
For example, suppose a job posting for a retail or entry-level administrative job requires job applicants to have a college degree. A college degree probably isn’t necessary to get a job, but without one, workers are denied the opportunity to be considered. Such employees would be able to bring a claim of disparate impact against that company.
It’s not just about appointments. Employers who set pay for a position based on what people earned in their previous job – rather than the value of the work being performed – may also face disparate impact claims and must show that prior pay accurately differentiates the value of employees’ current work.
In an era where evidence of intentional discrimination is rarely shown, and employers incorporate increasingly advanced technology into decision making, disparate impact claims are more important than ever to fight employment discrimination.
Employers are now frequently using AI to screen applicants, but AI tools can be tailored based on the demographics of existing employees, and identify characteristics that are not job-related, such as whether you played lacrosse in college.
AI hiring systems can also be a “black box” that does not tell the employer what criteria it is using. The efficiency achieved using AI should not come at the expense of applicants receiving fair assessment on job-related criteria.
Nonetheless, the EEOC has recently begun dismissing all pending claims of disparate impact discrimination, without completing the ongoing investigation. Just last month an internal memo was leaked manifest order EEOC staff have been asked to complete all investigations of disparate impact claims by the end of September and to notify claimants by the end of October that they must file lawsuits themselves if they wish to pursue their claims.
In doing so, the EEOC is failing to enforce Law Congress enacted it in 1964, which has prohibited disparate impact employment practices since at least 1971. There is no notice posted on the EEOC’s website or in any other form of communication explaining this to the EEOC. Instead, the EEOC is leaving those who file charges to think that their claims have no merit.
Fortunately, these civil rights laws can also be enforced by attorneys in private bar. As Supreme Court recognizedThe nation must rely on lawyers acting to some extent as “‘personal attorneys general'” [civil rights laws] Which Congress considered as the top priority.”
Workers who receive a Notice of Right to Sue should be aware that the EEOC’s refusal to investigate their claims does not mean that their claims do not have merit or that there is no way to proceed. On the contrary: the courts are still applying the law, including the disparate impact rule. The courts are obliged to do so, because Congress enacted a law in 1991 that specifically included disparate impact as a prohibited employment discrimination.
But workers who receive these notices from the EEOC only have 90 days to file their lawsuit, otherwise their claims could be forever time-barred. They should consult an attorney with experience bringing disparate impact claims as soon as possible.
The EEOC may abandon decades of precedent, but the court’s door remains open to workers with disparate impact claims. Do not be deterred by the EEOC’s actions or inactions. If you believe you have been the victim of discriminatory behavior in the workplace, even as a job applicant, there is still a path to justice.
Joseph Sellers and Christine Weber are co-chairs of the civil rights and employment practice at national litigation firm Cohen Milstein Sellers & Toll.
