Journal of Law & Civil Governance at Texas A&M Publishes “Title VII’s Classification Bar: Section 2(a)(2), Disparate Impact, and EEO-1s”

JLCG has selected for inclusion in Issue 1 of its third volume our Executive Director’s Title VII’s Classification Bar: Section 2(a)(2), Disparate Impact, and EEO-1s.

As stated in the Abstract:

In 1971, the Supreme Court’s Griggs v. Duke Power Co. opinion deferred to the Equal Employment Opportunity Commission’s assertion that Title VII of the Civil Rights Act of 1964 imposed disparate-impact liability onto employers by barring them from pursuing facially demographically neutral policies, even if both adopted with no intent to discriminate and evenhandedly applied, unless those policies satisfied a “business necessity” defense. In doing so, the Court referenced only one Title VII provision (42 U.S.C. § 2000e-2(a)(2)), in a buried, exposition-less footnote. On June 9, 2026, the Department of Justice’s Office of Legal Counsel released an opinion: (a) agreeing with those who have long argued that this reading of Title VII exceeded federal power under the Constitution; and (b) proposing a minimum set of alterations to the Title VII disparate-impact regime necessary to comply with the Constitution’s demands. OLC’s constitutional analysis is admirable, but does not reconcile § 2(a)(2)’s text with any continued imposition of disparate-impact liability under Title VII. This article explores the text and original understanding of § 2(a)(2), the few judicial precedents purporting to interpret its language, and the available alternative readings of Congress’s enactment. In doing so, it specifically analyzes two administrative actions the EEOC has taken applying § 2(a)(2) and recommends how best to reconcile them with each other and with § 2(a)(2)’s demands.

JLGC has made the full article available on its website pending formal publication later this year: https://jlcgtamu.com/wp-content/uploads/2026/07/morenoff-article_forthcoming-2026.pdf.