The Trump Administration Gets Civil Rights Back on Track

With ‘disparate impact’ theory, the EEOC long ago departed from its mission to prevent discrimination

By Jason L. Riley. Excerpts:

"Hubert Humphrey, the liberal Democrat from Minnesota who shepherded the bill through the Senate, insisted the act didn’t “provide that any preferential treatment in employment shall be given to Negroes or to any other persons or groups.” If anyone can find “any language which provides that an employer will have to hire on the basis of percentage or quota related to color, race, religion, or national origin,” he said, “I will start eating the pages one after another, because it is not in there.”"

"Supporters noted repeatedly that Title VII’s language was unambiguous. Racial discrimination on the part of the employer had to be intentional and couldn’t be inferred from disproportionate outcomes in the hiring and promotion of minorities."

"within three years EEOC staffers began redefining “discrimination,” sidestepping the statutory language of the bill and ignoring the legislative history. They determined that statistical disparities could be used as evidence of hiring bias and that employers could be held liable for racial imbalance in the workplace, even if it was unintentional. Alfred Blumrosen, the EEOC’s first compliance chief and one of the people who drafted its initial disparate-impact guidance, later admitted that the agency’s power didn’t “flow from any clear congressional grant of authority” and that it “required a reading of the statute contrary to the plain meaning.”" 

"the EEOC’s rogue actions were endorsed by an activist judiciary. In Griggs v. Duke Power Co. (1971), the Supreme Court said hiring practices that were “neutral on their face, and even neutral in terms of intent” could be unlawful if they resulted in racial imbalances. The decision gave employers an incentive to use racial preferences in hiring to avoid being sued for discrimination."