Griggs Must Go
Defenders of the Constitution were thrilled when Loper Bright/Relentless eviscerated Chevron deference in 2024. No longer may courts defer to an agency’s “permissible” interpretation of a statute. As Chief Justice Roberts summed it up: “In the business of statutory interpretation, if it is not the best, it is not permissible.”[1]
Chevron’s demise struck a mighty blow to the Administrative State, but much work remains to be done before legislative interpretation is completely restored to its proper realm. Opponents of the Administrative State are familiar with Brand X deference (providing for deference to agency interpretations of statutes, even if such interpretations conflict with prior judicial interpretations)[2] and Stinson deference (providing for deference to agency commentary regarding the U.S. Sentencing Guidelines)[3], to name just two of several forms of deference.
Perhaps one of the more egregious examples of judicial deference occurred when the Supreme Court deferred to the Equal Employment Opportunity Commission (EEOC) in its 1971 Griggs decision.[4] Ignoring the plain language of the Civil Rights Act, the Supreme Court determined that Title VII created a private right of action for “disparate impact discrimination” in the employment context, that is, for conduct that lacks discriminatory intent. To get there, the Court stated that the EEOC’s guidance supporting disparate impact liability was entitled to “great deference.”
This was a staggering development given the then-recent history of the Civil Rights Act. Title VII faced significant hurdles, and only through much debate and congressional compromise was the resulting legislation made possible. Professor Gail Heriot laid out a comprehensive history of disparate impact liability in the employment context in her 2020 NYU Journal of Law and Liberty article[5]. Congress denied the EEOC the ability to make any substantive rules, which as Professor Heriot explains, was critical in ensuring that the Civil Rights Act had the congressional support it needed.[6] Creating a weak agency to administer Title VII was inspired in part by congressional consensus that disparate impact liability should not creep into Title VII litigation.[7]
In Griggs, the Supreme Court negated Congress’s hard work and handed the EEOC a blank check for rulemaking, one that does require notice and comment and other safeguards of rulemaking. Although the EEOC cannot make rules, it can—and often does—issue “guidance,” to which courts—citing Griggs—often defer. No longer confined to issues of disparate impact liability, Griggs deference has recently been extended to the EEOC’s guidance on what constitutes employer retaliation,[8] what conditions are “pregnancy related,”[9] and what alternative selection procedures should be used by law enforcement.[10] Ironically, by denying the EEOC rulemaking ability, Congress inadvertently created an even more powerful agency than the one it sought to prevent.
Griggs illustrates well the widespread consequences that can result when courts defer to agency bureaucrats. In addition to spreading deference among EEOC regulations, Griggs paved the way for the Supreme Court to ignore the language of additional statutes in favor of disparate impact liability, including the Age Discrimination in Employment Act[11] and the Fair Housing Act.[12] Beyond those examples, disparate impact liability has spread even further, permeating dozens statutory regimes and agencies. Disparate impact rules had regulations have been promulgated by the Environmental Protection Agency, the Department of Education, the Department of Health and Human Services, the Department of Transportation, the Department of Agriculture, the Department of Housing and Urban Development, the Federal Highway Administration, and the Consumer Fraud Protection Board to name a few.
All of this might have been avoided if the Griggs Court had properly interpreted Title VII. As Justice Thomas, a former EEOC Commissioner himself, wrote, “[t]he author of disparate-impact liability under Title VII was not congress, but the [EEOC].”[13] Despite its stated awareness “from the beginning that a normal, traditional, and literal interpretation of Title VII could blunt their efforts” to create disparate impact liability, the EEOC made this a goal.[14] Casting aside any concerns about statutory constraint, the EEOC “rejected” a “‘defeatist view of Title VII’ that saw the statute as a ‘compromise’ with limited scope.”[15] And through Griggs, the Supreme Court provided its stamp of approval on the EEOC’s brazen disregard for its congressionally-prescribed limits.
Subverting congressional intent to administrative will has potentially catastrophic consequences for democracy. As Professor Heriot astutely observes, Griggs deference “mak[es] future legislation less likely. If legislators can’t trust executive branch officials to enforce the law as actually written, they would be fools to keep passing legislation arrived at by compromise.”[16] Indeed, given that efforts to compromise are often in vain, is no wonder that Congress has ceded much of its power to the Administrative State. As one of the earliest and most egregious examples of modern-day deference, and given its far-reaching and ongoing consequences, Griggs should be close to the top of the Supreme Court’s deference-reversal to-do list.
[1] Loper Bright Enters. v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, 603 U.S. 369, 400 (2024).
[2] Nat’l Cable & Telecommunications Ass’n v. Brand X Internet Servs., 545 U.S. 967 (2005).
[3] Stinson v. United States, 508 U.S. 36 (1993).
[4] Griggs v. Duke Power, 401 U.S. 424 (1971).
[5] Heriot, Gail, “Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal,” 14 N.Y.U. J. L & Liberty 1 (2020).
[6] Id. at 21-23.
[7] Id. at 19-25.
[8] Bazzi v. FCA US LLC, 2024 WL 4894845, at 8 (E.D. Mich. Nov. 26, 2024).
[9] Ross v. Pacific Maritime Ass’n, 2020 WL 8996653, at *2 (W.D. Wash. Feb. 24, 2020).
[10] Hispanic Nat’l Law Enforcement Ass’n NCR v. Prince George’s Cty., 535 F. Supp. 3d 393, 422 (D. Md. 2021).
[11] Smith v. City of Jackson, 544 U.S. 228 (2005).
[12] Texas Dep’t of Housing and Cmt. Affs. v. Inclusive Cmts. Proj., 576 U.S. 519, 550 (2015).
[13] Id.
[14] Id. at 550-551.
[15] Id. at 551 (citing H. Graham, The Civil Rights Era: Origins and Development of National Policy 1960-1972, p. 248 (1990)).
[16] Heriot at 33.
