Page:Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc.pdf/34

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Thomas, J., dissenting

EEOC's guidelines from those years are a case study in Blumrosen's "creative interpretation." Although EEOC lacked substantive rulemaking authority, see Faragher v. Boca Raton, 524 U. S. 775, 811, n. 1 (1998) (Thomas, J., dissenting), it repeatedly issued guidelines on the subject of disparate impact. In 1966, for example, EEOC issued guidelines suggesting that the use of employment tests in hiring decisions could violate Title VII based on disparate impact, notwithstanding the statute’s express statement that "it shall not be an unlawful employment practice . . . to give and to act upon the results of any professionally developed ability test provided that such test . . . is not designed, intended, or used to discriminate because of race, color, religion, sex, or national origin," §2000e–2(h) (emphasis added). See EEOC, Guidelines on Employment Testing Procedures 2–4 (Aug. 24, 1966). EEOC followed this up with a 1970 guideline that was even more explicit, declaring that, unless certain criteria were met, "[t]he use of any test which adversely affects hiring, promotion, transfer or any other employment or membership opportunity of classes protected by title VII constitutes discrimination." 35 Fed. Reg. 12334 (1970).

EEOC was initially hesitant to take its approach to this Court, but the Griggs plaintiffs forced its hand. After they lost on their disparate-impact argument in the Court of Appeals, EEOC’s deputy general counsel urged the plaintiffs not to seek review because he believed "'that the record in the case present[ed] a most unappealing situation for finding tests unlawful,'" even though he found the lower court’s adherence to an intent requirement to be "'tragic.'" Graham, supra, at 385. The plaintiffs ignored his advice. Perhaps realizing that a ruling on its disparate-impact theory was inevitable, EEOC filed an amicus brief in this Court seeking deference for its position.[1]

  1. Efforts by Executive Branch officials to influence this Court's disparate-impact