DOJ Opines that EEOC’s Title VII Disparate Impact Framework Is Unconstitutional

On June 9, 2026, the U.S. Department of Justice’s Office of Legal Counsel (“OLC”) issued a significant memorandum opinion concluding that the Equal Employment Opportunity Commission’s (“EEOC”) longstanding interpretation of disparate impact liability under Title VII of the Civil Rights Act of 1964 is unconstitutional.

The opinion represents a major shift in federal enforcement policy and substantially narrows the scope of disparate impact liability, which for decades has allowed plaintiffs to challenge facially neutral employment practices based on statistical disparities alone. Although the OLC opinion does not itself change Title VII and is not technically binding on courts, it will effectively serve as binding guidance for federal agencies, is expected to significantly reshape EEOC enforcement priorities and federal litigation positions, and should therefore inform employer compliance strategies.

BACKGROUND: DISPARATE IMPACT UNDER TITLE VII

For more than 50 years, Title VII has been interpreted to permit two primary theories of discrimination:

• disparate treatment or intentional discrimination; and
• disparate impact resulting from facially neutral practices that disproportionately affect protected groups without proof of intent.

The Supreme Court first recognized disparate impact liability in 1971 in the Griggs v. Duke Power case, and Congress codified that framework in the Civil Rights Act of 1991.

Under the traditional disparate impact framework, a plaintiff could establish a prima facie case by identifying a specific practice that caused statistically significant disparities, after which the employer would need to demonstrate “business necessity.” Even when an employer could make such a showing, a plaintiff could nevertheless prevail by identifying a less discriminatory alternative.

KEY ASPECTS OF THE DOJ OPINION

The Current Framework Is Unconstitutional. The OLC concluded that the EEOC’s interpretation of disparate impact liability is unconstitutional because it allows liability “based on disparate effects alone, without regard to an employer’s likely intent.” According to the DOJ, this framework improperly “pressures employers to engage in race-based decision making” to avoid liability, raising serious equal protection concerns.

Title VII Guarantees Equal Treatment, Not Equal Outcomes. The OLC memorandum emphasizes that Title VII is properly understood as ensuring equal treatment, not mandating equalized statistical outcomes across demographic groups. The memo criticizes the EEOC’s approach as effectively creating a “racial proportionality mandate,” which it views as inconsistent with constitutional principles.

Disparate Impact Is Not an Independent Basis for Liability. The opinion significantly narrows the disparate impact doctrine, emphasizing that it should function only as evidence of potential intentional discrimination, rather than a standalone basis for liability.

Relaxed “Business Necessity” Standard. The opinion reinterprets what is required for an employer’s defense, opining that employers need only show that a challenged practice is reasonable, useful or serves a valid business purpose, rather than meeting a heightened “business necessity” threshold.

Heightened Burden on Plaintiffs. Under the DOJ’s new framework, plaintiffs must now both identify the specific employment practice causing the alleged disparity and propose an equally effective alternative that would mitigate such a disparity. Such an approach obviously raises the bar for bringing and sustaining disparate impact claims.

IMPLICATIONS FOR EMPLOYERS

The new OLC opinion, while not law or regulation, does create some potential implications for employers, including the following:

• Increased Flexibility in Employment Practices. The opinion indicates that employers may use common screening tools such as aptitude tests, criminal background checks and educational requirements even if they produce disparate outcomes, provided those tools are job-related and reasonably serve business objectives.

• Reduced Short-Term Federal Enforcement Risk. The EEOC is expected to align its enforcement priorities with the DOJ’s interpretation, potentially decreasing the number of federal investigations and litigation based solely on disparate impact theories. This reduced risk should be considered short-term because this opinion could be and likely would be withdrawn by a new DOJ and OLC under a Democratic presidential administration.

• Continued Litigation Uncertainty. Again, this new OLC opinion is not binding on federal courts, and U.S. Supreme Court precedent recognizing disparate impact remains intact subject to successful legal challenges. Private plaintiffs may continue to bring claims under existing statutory and judicial frameworks, and judges may continue to follow existing legal precedent that predates and is not necessarily affected by this new DOJ opinion. This creates a period of heightened legal uncertainty and potential divergence between agency enforcement and judicial outcomes.

RECOMMENDED NEXT STEPS

While the federal government’s views on disparate impact liability under Title VII have changed, the law itself is still on the books as are court decisions interpreting it. Nevertheless, there are some actions that a prudent employer may consider in response to this new reality, including:

• Monitor Changes to Federal, State and Local Laws. While federal law is unlikely to change in response to this opinion, state and local laws concerning the same topic could change. And EEOC changes are also likely in the wake of this opinion.
• Review Hiring Practices. At least for now, employers can now use certain screening tools even if those tools produce outcomes that may present disparate results, with less concern for federal enforcement action. Moreover, the opinion signals the Trump administration’s overall shift in emphasis from disparate impact-related enforcement to a new focus on diversity, equity and inclusion (“DEI”) initiatives.
• Avoid Intentional Discrimination in Hiring. The opinion clearly does not alter the fact that disparate treatment is still illegal under Title VI. Explicit or intentional discrimination remains strictly unlawful and does create both litigation risk and government enforcement action risk.

While the OLC opinion significantly decreases federal disparate impact risk for employers, the law itself hasn’t changed. Moreover, Title VII’s disparate treatment prohibition remains fully intact. The bottom line for employers is that they should continue to maintain hiring and employment policies and practices that do not intentionally or unintentionally discriminate against individuals in any way that is prohibited by Title VII.

The Brownstein team is following these developments closely. For more information or specific guidance on how to respond to these enforcement trends, please contact the authors.