T. Elliot Gaiser is the assistant attorney general for the Office of Legal Counsel at the Justice Department. Josh Craddock is a deputy assistant attorney general in the office.
For years if a business adopted an objective, merit-based policy — say, automatic promotions for the top 10 percent of the sales team — every employer knew what HR would ask next: What is the skin color of those promoted? If the answer was too monochrome, the company’s policy could draw legal liability and even an investigation from the federal government.
Until now. In an opinion last month, the Justice Department’s Office of Legal Counsel concluded that this sordid practice is no longer good law. Andrea Lucas, chair of the Equal Employment Opportunity Commission, had asked us whether punishing such policies for their effects alone was constitutional. The primary enforcer of employment law was concerned that “disparate impact” liability had expanded beyond an evidentiary tool intended to smoke out intentional discrimination into a hidden racial balancing mandate anathema to the Constitution.
We agreed. The 14th Amendment, enacted after the Civil War, guarantees the “equal protection of the laws” to all. A century later, Congress enacted Title VII of the Civil Rights Act of 1964 to codify that principle of color blindness in the workplace. The text forbids employers from discriminating against individuals “because of” race, color, religion, sex or national origin.
But applying that principle in...
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