Adds Lucas statement in paragraph 5

By Daniel Wiessner

June 9 (Reuters) - The U.S. Department of Justice on Tuesday said a federal civil rights agency's approach to enforcing workplace bias laws "is unlawful and unconstitutional," furthering an effort by President Donald Trump's administration to gut a longstanding form of legal protection against discrimination.

DOJ's Office of Legal Counsel in a 25-page opinion said the Equal Employment Opportunity Commission's legal guidance to deter "disparate impacts" on protected groups of workers is wrong because it focuses solely on outcomes with no regard for an employer's intent.

"EEOC’s historic approach ... functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability. That approach is unlawful and unconstitutional," lawyers from the office wrote.

EEOC Chair Andrea Lucas, a Trump appointee, had requested the opinion in February in light of Trump's 2025 ​executive order directing federal agencies not to enforce laws that prohibit disparate-impact discrimination.

Lucas in a statement on Tuesday said: "We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters."

Acting Attorney General Todd Blanche in a statement said the opinion "will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace."

The EEOC has already signaled that it will not pursue disparate-impact cases. It adopted a five-year enforcement plan last week that includes a focus on cases involving intentional discrimination instead of disparate-impact liability.

But Tuesday's memo, which is not binding, could lay the groundwork for the EEOC to formally abandon its prior guidance on disparate-impact discrimination and bolster efforts to curb disparate-impact liability in other areas including housing, education and lending.

Numerous federal laws, some dating to the years after the Civil War, prohibit discrimination based on race, sex, religion and other protected traits. Courts long understood discrimination to be an intentional act, but that began to change after the adoption of the landmark Civil Rights Act in 1964.

The U.S. Supreme Court created a new path to hold employers liable for discrimination in the 1971 case Griggs v. Duke Power. The court said that otherwise neutral employment practices can violate Title VII of the Civil Rights Act when they disproportionately affect a protected group and are not demonstrably related to job performance.

Congress in 1991 amended the Civil Rights Act to explicitly prohibit the practices covered by the Supreme Court decision. Many experts have credited those changes for helping spur companies to track the impact of their employment policies on protected groups, a now commonplace practice.

Examples of policies that can have disparate impacts include fitness requirements that are more difficult to meet for women or people with disabilities, and requirements that new hires be recent college graduates, which rules out many older applicants.

Trump and other critics of disparate-impact liability have said the threat of litigation prevents businesses from making decisions based on merit and skill, and that the legal theory wrongly presumes that unlawful discrimination exists where there are any disparities in outcomes among different groups.

In Tuesday's opinion, the Office of Legal Counsel said disparate impact should only be considered as evidence of potential intentional discrimination, and that the EEOC's guidance to the contrary is invalid.

Read more:

US worker rights agency nixes Biden-era enforcement plan, will focus on DEI

New York Times sued by US employment agency over diversity, hiring

Trump order targeting DEI by federal contractors challenged in lawsuit

Ex-Amazon worker sues EEOC for dropping disparate impact cases after Trump order