The Trump administration‘s Department of Justice (DOJ) has released an opinion that, if adopted by the federal judiciary, could substantially weaken protections against employment discrimination. This opinion, issued by the Office of Legal Counsel and signed by T. Elliot Gaiser, argues that recent Supreme Court decisions should influence how employment discrimination cases are evaluated.
Gaiser, a former law clerk to Justice Samuel Alito, draws parallels between the Supreme Court’s decision in Louisiana v. Callais and employment discrimination law. The Callais decision repealed a 1982 amendment to the Voting Rights Act, which had allowed plaintiffs to challenge election laws without proving racist intent. Similarly, Gaiser’s opinion suggests that employment discrimination plaintiffs should also need to prove intentional discrimination.
The Impact of the Callais Decision
The Callais decision has already had a significant impact on voting rights. For 40 years, the Supreme Court interpreted the Voting Rights Act’s “results” test to sometimes require states to draw legislative districts where Black or Latino voters could elect their preferred candidates. However, after Callaiswhite lawmakers are now free to draw maps that favor white Republicans, so long as they claim the purpose is to lock Democrats out of power rather than target voters of color.
Gaiser’s opinion extends this logic to employment discrimination law. He argues that the framework established in Callais should apply to “disparate impact” suits, which allow plaintiffs to challenge employment practices that disproportionately affect certain racial or ethnic groups. Quoting from CallaisGaiser states that federal employment discrimination law “imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.”
The Broader Implications
If adopted, Gaiser’s interpretation could have two major consequences. First, it would make it significantly harder for many employment discrimination plaintiffs to prevail in court. Second, it would reduce the power of elected officials to remedy discrimination, shifting more control to the Supreme Court.
Both the Voting Rights Act’s results test and employment discrimination’s disparate impact test were enacted by Congress. However, the Republican Party’s consistent position is that civil rights laws should bow to the interpretations of Republican justices. This approach raises questions about the democratic process and the role of the judiciary in shaping civil rights policy.
The History of Disparate Impact Lawsuits
Disparate impact lawsuits have a long history. The Supreme Court first embraced the idea that employment practices with a disproportionate impact on racial minorities could be illegal in its unanimous decision in Griggs v. Duke Power (1971). In that case, the Court ruled against an employer who had instituted a new policy preventing people without a high school diploma from transferring out of the lowest-paying jobs, while grandfathering in white employees without a high school education who were already in higher-paying roles.
The Court established that when an education requirement or similar barrier has a disproportionate negative impact on workers of a particular race, the requirement must 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 practice is job-related and consistent with business necessity.
Republican judges have long been skeptical of these disparate impact suits. In Ricci v. DeStefano (2009), five of the Court’s Republicans rejected a lawsuit challenging an exam used to screen firefighters seeking a promotion, even though nearly all of the applicants who passed the test were white. Justice Antonin Scalia even suggested that the 1991 law endorsing these suits may be unconstitutional.
Despite this skepticism, the law remains technically good today. During the Obama administration, the DOJ used disparate impact lawsuits against lenders accused of widespread housing discrimination. For example, the mortgage lender Countrywide agreed to pay $335 million to settle a claim that it charged higher fees and rates to more than 200,000 minority borrowers 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. For instance, if an employer uses artificial intelligence to screen job applicants and the AI disproportionately screens out Black candidates, the employer could be sued under a disparate impact theory. A California federal court is currently wrestling with this issue in a case called Mobley v. Workday.
The Republican Approach to Civil Rights Law
The question of what protections racial minorities should enjoy in housing, employment, election law, and elsewhere is complex. While the United States has made progress since 1971, it is far from achieving racial equality. In 2026, the median white household earned $88,010 in annual income, while the median Black household earned just $56,020.
ordinarily, the United States leaves such policy questions 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.
However, the fundamental premise of both the Callais decision and Gaiser’s opinion is that these difficult policy questions should be removed from the democratic process and given to a Republican judiciary. 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.
