Summary At a Glance
- DOJ issued an opinion challenging the EEOC’s long-standing approach to disparate-impact liability under Title VII.
- The opinion does not amend Title VII, overrule U.S. Supreme Court precedent, or bind federal courts, private litigants, or state enforcement agencies.
- Employers should not make sudden changes to selection, testing, background check, or AI hiring practices based on the opinion alone.
- Maintaining job-related, consistently applied, and well-documented selection criteria remains the most prudent compliance approach.
What Happened?
On June 9, 2026, the U.S. Department of Justice’s Office of Legal Counsel (OLC) issued an opinion concluding that the Equal Employment Opportunity Commission’s (EEOC’s) long-standing disparate-impact guidance under Title VII is unconstitutional as currently interpreted. The opinion reflects a significant shift in the federal executive branch’s approach to civil rights enforcement and may affect how federal agencies prioritize or pursue certain employment discrimination matters.
“Disparate impact” generally refers to a facially neutral employment practice that disproportionately affects individuals in a protected group, even without proof of discriminatory intent. This framework has been a key part of employment discrimination law for more than 50 years, beginning with the U.S. Supreme Court’s 1971 decision in Griggs v. Duke Power Co. and later codified by Congress in the Civil Rights Act of 1991.
The DOJ opinion does not eliminate disparate-impact liability. However, it takes a much narrower view of when such liability may apply and directly challenges the EEOC’s historical interpretation of Title VII, including the Uniform Guidelines on Employee Selection Procedures.
Why This Matters
“The opinion creates tension between the federal executive branch’s current enforcement position and the legal framework that courts, employers, and practitioners have relied on for decades”, according to HR Works’ Compliance Services Manager, Tee Nelson. Nelson describes three important ways in which the opinion departs from traditional disparate-impact analysis:
First, it challenges the use of disparate impact without evidence suggesting intentional discrimination. The opinion argues that disparate-impact liability, as historically applied, pressures employers to consider race or other protected characteristics to avoid statistical disparities.
Second, it lowers the business-necessity standard. Under traditional disparate-impact analysis, employers generally have been expected to show that a challenged selection practice is job-related and consistent with business necessity. The DOJ opinion states that an employer need only show that the practice rationally serves a valid business purpose.
Third, it shifts the practical burden on plaintiffs. Under the traditional framework, once a plaintiff identifies a specific employment practice that causes a disparate impact, the employer must defend the practice as job-related and consistent with business necessity. The DOJ opinion instead treats many selection practices, such as aptitude tests, knowledge-based tests, criminal background checks, and similar screening tools, as presumptively job-related unless shown to be irrational or arbitrary.
Does the Opinion Have the Force of Law?
Not for employers in the same way a statute, regulation, or court decision would.
OLC opinions are highly influential within the executive branch and may shape how DOJ and other federal agencies approach enforcement. EEOC has already shown evidence of this influence in its National Enforcement Plan. However, the opinion does not amend Title VII, does not override U.S. Supreme Court precedent, and does not bind federal courts. Private plaintiffs may still bring disparate-impact claims under Title VII, and courts may continue applying existing statutory and judicial standards unless and until the law changes through legislation or binding judicial decisions.
The opinion also does not affect state anti-discrimination laws. Employers operating in states with robust civil rights laws, including jurisdictions such as California, New York, Illinois, and others, must continue to evaluate obligations under applicable state and local standards.
Recommended Next Steps for Employers
The DOJ opinion is significant because it signals a shift in federal enforcement philosophy, but it does not change the law by itself. It does not amend Title VII, override existing court precedent, or eliminate private litigation or state law obligations. As a result, employers should not treat the opinion as permission to discontinue adverse impact analyses, validation practices, or careful documentation of employment decisions.
For now, employers should avoid reactionary changes to equal employment opportunity, hiring, testing, background check, or AI governance practices. The most prudent approach remains using selection procedures that are job-related, consistently applied, and supported by appropriate documentation. Employers should also continue to monitor court decisions, agency guidance, and state law developments, as these will ultimately determine how much practical impact the opinion has on workplace compliance obligations.
How HR Works Can Help
HR Works can assist employers in reviewing hiring practices, selection criteria, job qualifications, background check practices, and artificial intelligence tools for compliance risks. We also help organizations evaluate whether policies and practices are consistently applied, appropriately documented, and aligned with applicable federal, state, and local requirements.
Current Virtual Helpline or Strategic Services clients may contact the Virtual Helpline or their designated HR Consultant for assistance. Employers that are not currently HR Works clients may contact us to learn more about how our services can support your organization.
