Readers of this update are aware that the Equal Employment Opportunity Commission (EEOC) stopped treating disparate treatment as a viable theory of discrimination following an executive order issued by President Trump. Any last gasps for air by the disparate treatment theory of discrimination are being snuffed out by the EEOC.
The EEOC recently sent a proposal to the Office of Management and Budget's Office of Information and Regulatory Affairs to repeal the EEOC’s Uniform Guidelines on Employee Selection Procedures. The Guidelines, which were adopted in 1978, provided employers with guidelines to ensure that hiring assessments such as cognitive tests, credit checks, and criminal background checks, do not disproportionately exclude employees or hiring candidates based on protected characteristics such as race or gender. These were the Guidelines upon which the EEOC based prior “disparate impact” theories of liability against employers. The EEOC’s rescission of the Guidelines is the final step in killing off disparate impact theories of liability (at least as asserted by the EEOC).
