Supreme Court shift could block employment discrimination claims

disparate impact – The Trump Justice Department’s Office of Legal Counsel says a Supreme Court voting-rights ruling should apply in employment discrimination cases—an interpretation that could make it far harder for plaintiffs to win, even when practices cause unequal harm.

By Tuesday. the message had already begun to spread through Washington—only it wasn’t a campaign speech or a court filing. It was an opinion from the Justice Department’s Office of Legal Counsel, signed by T. Elliot Gaiser, arguing that a recent Supreme Court voting rights decision should govern a different arena: employment discrimination.

The stakes are straightforward for workers who face discrimination and for the lawyers who bring their cases. Gaiser’s view—if adopted by a Republican-controlled federal judiciary—would make it significantly harder for plaintiffs to prevail in court when they challenge employment practices that produce discriminatory results. rather than proving discriminatory intent.

Gaiser’s background also sharpens the political and legal signal. The head of the Office of Legal Counsel is a former law clerk to Justice Samuel Alito. the author of the Supreme Court’s decision in Louisiana v. Callais. In that case. the Court repealed a 1982 amendment to the federal Voting Rights Act and greenlit a new round of gerrymandering by white Southern Republican lawmakers.

In Gaiser’s Tuesday opinion. the core argument is that Alito’s attack on the Voting Rights Act in Callais applies with equal force to anti-discrimination law in employment. The opinion points to how similar legal reasoning can be moved from election maps to workplace policy—whether courts accept it as a legitimate extension or treat it as a bridge too far.

The timing mattered. One day after Gaiser released the opinion, the Trump Department of Transportation announced it was applying Callais to its regulations. That sequence suggests the administration is aiming to carry Alito’s views across the executive branch. not confine them to voting rights alone.

The Voting Rights Act “results” test, which the Supreme Court limited in Callais, is at the center of the analogy. Under the 1982 amendment that Callais repealed. voting rights plaintiffs who challenged a state election law did not need to prove that state lawmakers acted with racist intent in order to prevail. Instead. a state law that “results” in voters having their right to vote diminished due to their race could be challenged.

For 40 years. the Supreme Court interpreted that “results” test to sometimes require states to draw a minimum number of legislative districts where Black or Latino voters could elect their candidates of choice. After Callais. white lawmakers are free to draw maps that will only elect white Republicans. so long as they claim the purpose of those maps is to lock Democrats out of power rather than to target voters of color.

Employment discrimination law is built differently on paper, but Gaiser says the logic is close enough to collapse the distinction. His opinion concerns a 1991 federal law that sometimes permits an employment discrimination plaintiff to prevail if they can show that an employer engages in a “practice that causes a disparate impact on the basis of race. color. religion. sex. or national origin.” This framework is known as “disparate impact.”.

Gaiser argues that disparate impact is similar to the pre-Callais Voting Rights Act because it sometimes permits a civil rights plaintiff to prevail without proving that the employer acted with racist or impermissible intent. The heart of the argument is that Callais’s approach should apply to disparate impact suits as well.

To make that case. Gaiser quotes from Callais. writing that federal employment discrimination law “imposes liability only when the circumstances give rise to a strong inference that intentional discrimination occurred.” The effect of that standard. in practice. is what worries many workers’ advocates: two different kinds of discrimination cases could end up requiring the same kind of proof.

One upshot is likely to be immediate in the day-to-day lives of plaintiffs. Under this approach, many employment discrimination plaintiffs would face a much steeper climb to prevail in court.

The other upshot reaches further than individual disputes. The opinion’s logic would. as described in the underlying reasoning. reduce the power of elected officials to remedy discrimination of all kinds. It would also shift the scope of civil rights law so it is determined primarily by the Supreme Court.

Both the Voting Rights Act’s results test and employment discrimination’s disparate impact test were enacted into law by Congress. Yet the argument embedded in Gaiser’s position—and in the logic of Callais—is that democratically enacted civil rights laws must bow to the views of Republican justices.

A key detail often lost in the headlines is that disparate impact lawsuits predate Congress’s 1991 decision to endorse them. The Supreme Court first embraced the idea in its unanimous 1971 decision in Griggs v. Duke Power. Griggs involved an employer who historically employed both Black and white workers who did not have a high school diploma. but restricted all Black workers to the lowest-paying jobs. Shortly after Congress banned employment discrimination in 1964. the employer instituted a new policy preventing people without a high school diploma from transferring out of the lowest paying jobs. It also grandfathered in white employees without a high school education who were already in higher paying roles.

The Court ruled against the employer. While the justices acknowledged there are often valid reasons for an employer to require a certain level of education. they pointed to the fact that white workers without a high school diploma had historically performed well in higher-paying roles. That, the Court concluded, suggested Black workers without a high school education would also perform well in those roles.

Griggs 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 that rule in the 1991 law. The 1991 law forbids employment practices that have a disparate impact on certain groups of workers unless the employer can show “that the challenged practice is job related for the position in question and consistent with business necessity.”.

Still, Republican judges have long been skeptical of disparate impact suits. In Ricci v. DeStefano (2009). five of the Court’s Republicans rejected a lawsuit challenging an exam used by the city of New Haven. Connecticut. to screen firefighters seeking a promotion. even though nearly all of the applicants who passed the test were white. In a separate concurring opinion, Justice Antonin Scalia suggested the 1991 law endorsing these suits may be unconstitutional.

Even with that skepticism, the law remains in effect. The 1991 framework and a similar law allowing disparate impact suits in housing discrimination cases are still technically good law today.

During the Obama administration, the DOJ used disparate impact lawsuits against lenders accused of widespread housing discrimination. Countrywide. for example. agreed to pay $335 million to settle a claim that it “charged higher fees and rates to more than 200. 000 minority borrowers across the country than to white borrowers who posed the same credit risk.”.

Disparate impact can also matter in new workplace practices, including automated screening. The question in those cases is whether a pattern of unequal outcomes can be actionable even when there is no intent to discriminate.

One scenario involves artificial intelligence used to screen job applicants. The idea is a system with hidden bias that disproportionately screens out Black candidates while the employer itself lacks discriminatory intent. A California federal court has been grappling with that issue in a case called Mobley v. Workday. The judge hearing the case rejected the plaintiffs’ claim that employers who use that AI engaged in intentional discrimination. but allowed the case to move forward under a disparate impact theory.

What comes next, with Gaiser’s opinion, is not only a question for courts. It is a question about who gets to decide how much protection civil rights laws provide—and how much room Congress gave for cases based on results rather than motive.

The broader argument offered in the source material is that the Republican approach to civil rights law is fundamentally anti-democratic: that difficult decisions about what protections racial minorities should have—in housing. employment. election law. and elsewhere—have been moved away from elected officials and toward Republican justices.

Whether that charge lands depends on how you interpret what has already happened in practice. The nation. after all. has changed since 1971. when Griggs was decided and the American South was still working through Jim Crow. Yet the material also points to the enduring gap: in 2024. according to US census data. the median white household earned $88. 010 in annual income. while the median Black household earned $56. 020.

Ordinarily, the argument goes, the country leaves these policy choices 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. It decided, when it enacted the 1991 law codifying disparate impact lawsuits, to permit those lawsuits to move forward.

Gaiser’s opinion. paired with the Supreme Court’s reasoning in Callais and echoed by the executive branch’s reported turn in regulations. points toward a different direction: that civil rights law may be narrowed by the courts’ view that the country has largely solved its racism problem and that laws like the amended Voting Rights Act or those enabling disparate impact suits are no longer necessary.

For workers and plaintiffs trying to enforce anti-discrimination protections, the bottom line is immediate. A legal theory designed to reach practices that produce discriminatory outcomes could be forced to look more like the kind of case built around proving intentional discrimination—an adjustment that would put many claims out of reach before they ever reach a jury.

Supreme Court Louisiana v. Callais voting rights act Office of Legal Counsel T. Elliot Gaiser employment discrimination disparate impact civil rights Department of Transportation Mobley v. Workday Griggs v. Duke Power