Several BCGi members have expressed concern over recent reporting about the current White House administration’s efforts to “roll back” anti-discrimination rules in secret at the eleventh hour. While such reports as this one and this one, from the Washington Post are alarming, none of what is being reported will have any impact on EEO/AA compliance practitioners.
The main concern regards actual proposed changes to Department of Justice (DOJ) regulations implementing Title VI (distinct from Title VII which prohibits employment discrimination) of the Civil Rights Act which prohibits discrimination by recipients of federal funds, such as grants, loans, and other assistance programs. Although the statute itself does not explicitly mention disparate impact discrimination, the original implementing regulations promulgated in 1966 do.
A small number of federal court cases over the years have noted that Title VI was intended to align with the Equal Protection Clause of the U.S. Constitution, which in turn has been interpreted to require evidence of intentional discrimination. Courts have held that disparate impact alone is generally insufficient to find a violation of Title VI, but have stopped short of declaring the implementing regulations unconstitutional.
The current administration has erroneously read these court decisions to require federal agencies to strip any and all references to disparate impact theories of discrimination from their Title VI regulations and that is what the DOJ is seeking to do. Somewhat suspiciously, the agency has chosen to do this out of public view, claiming that the regulatory change falls into an exception from the Administrative Procedures Act requiring public notice and comment.
If enacted, the DOJ’s proposed revisions would allow the agency to approve grants, loans, financial assistance, etc. to organizations despite evidence of unintentional discrimination. However, at this time it is limited to the DOJ and this is separate and distinct from regulations regarding federal contractors (grants and other forms of financial assistance are generally not considered “contracts” for the purpose of enforcing the EEO/AA requirements of Executive Order 11246).
It is unclear whether and to what extent other federal agencies might be engaging in similar regulatory “reform” efforts in the waning days of the administration, but none of these efforts are likely to have lasting impact.
If the new administration determines that these regulatory changes (should they go into effect) do in fact fall in an exemption from public notice and comment requirements, they can rescind the revised regulations the same way, i.e., relatively quickly. If the new administration determines that these regulatory changes were made in violation of the Administrative Procedures Act, they can be rescinded immediately through a simple order.
As to whether or not the Department of Labor (DOL) has any similar plans, that is highly doubtful. For one thing, Title VI disparate impact theory is a creature of the implementing regulations, but where Title VII is concerned, disparate impact is baked into the statute itself and cannot be changed by regulation. So it’s a non-starter where federal contractors are concerned. Given the events of the last several days, this is a relatively minor blip that does not have any real “legs” to speak of. Nothing is changing with regard to federal contractor EEO/AA obligations or enforcement and disparate impact discrimination is still a very viable tool that the DOL can and will continue to use in its efforts to root out illegal employment discrimination.