DOJ Opinion Finds EEOC Title VII Disparate Impact Guidelines Unconstitutional

Takeaways

• The DOJ analysis bolsters EEOC’s shift away from disparate impact liability theories of employment discrimination. 
• The DOJ memo proposes stricter limits on disparate impact claims.

Related links

• DOJ Office of Legal Counsel Memo 
• EEOC Releases New National Enforcement Plan 
• Does Employer Disparate Impact Liability Still Exist? The Latest EO Pushes to Eliminate It
• EEOC to Halt Investigations into Disparate Impact Claims

Article

On June 9, 2026, the Department of Justice’s (DOJ) Office of Legal Counsel released a memorandum opinion finding the Equal Employment Opportunity Commission’s (EEOC) existing guidelines on Title VII of the Civil Rights Act’s disparate impact provisions to be unconstitutional.

EEOC Chair Andrea Lucas had requested that the DOJ review the EEOC’s interpretative rules and guidance documents to advise whether the Title VII disparate impact provisions were constitutional as currently interpreted and applied.

The memo’s conclusions align with the Trump Administration’s efforts to “eliminate the use of disparate impact liability theories in investigations to the maximum degree possible,” as expressed in Executive Order 14281 (“Restoring Equality of Opportunity and Meritocracy”) and the EEOC’s new National Enforcement Plan for fiscal years 2025-2029. They are also consistent with the EEOC’s earlier reported directive to the agency to discharge all complaints rooted in disparate impact theories by Sept. 23, 2025. The memo does not address disparate impact liability under the Age Discrimination in Employment Act, which the DOJ views as raising different constitutional concerns.

In its memo, the DOJ takes the position that Title VII “guarantees equal treatment, not equal outcomes” and highlights constitutional equal protection concerns raised by disparate impact liability. A disparate impact theory of discrimination focuses on the impact of a facially neutral employment policy or practice on a particular group, regardless of an employer’s actual intent. The memo asserts, “By pressuring employers to take race-based actions in the name of proactively addressing potential statistical disparities, disparate-impact liability allows the government to engage in race discrimination indirectly.”

Under the DOJ’s analysis, three limiting principles should apply to Title VII disparate impact liability:

1. Employers should have broad leeway to establish a business necessity defense, and need only show that a challenged employment practice rationally serves a valid business purpose; 
2. Plaintiffs bear the burden of demonstrating that a particular policy causes a disparate impact; and
3. Plaintiffs must establish that the employer could have accomplished legitimate goals using an alternative, but equally effective, employment practice that would have had less disparate impact.

What the Memo Targets

The memo draws heavily from the U.S. Supreme Court’s recent decision in Louisiana v. Callais, which narrowed results-based liability under the Voting Rights Act by requiring a strong inference of intentional discrimination. The DOJ applies that same logic to Title VII.

Under the DOJ framework, an employer’s use of selection procedures like aptitude tests and background checks would be presumed to be job-related, and employer liability could only be created by “irrational or arbitrary practices with no plausible job-relatedness.”

This represents a significant departure from the Uniform Guidelines on Employee Selection Procedures (UGESP), which have defined the standard for defensible, job-related employment selection practices across employers, courts, and enforcement agencies since 1978. Under the UGESP, an employer whose selection procedure produces adverse impact must conduct a formal validation study to demonstrate job-relatedness. The DOJ’s memo concludes that these validation requirements “radically deviate” from what Title VII’s business-necessity defense actually demands, and that common selection procedures should instead be treated as presumptively lawful, although UGESP remain codified at 29 C.F.R. Part 1607.

The memo also concludes that the EEOC’s voluntary Affirmative Action Guidelines are unconstitutional and unlawful. It finds that they purport to authorize, and expressly encourage, racial preferences in employment decisions without requiring the strong basis in evidence of prior discrimination that the Supreme Court has demanded.

In response to the memo, Chair Lucas expressed gratitude for the “thoughtful and insightful analysis” and stated, “We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters.”

Implications for Employers

Employers using professionally developed pre-employment assessments should not abandon validation documentation but may reasonably recalibrate the scope of those efforts in light of the shifting federal posture.

Please contact a Jackson Lewis attorney with questions about the DOJ memo or for assistance in assessing how the current EEOC priorities may affect your employment practices, employment assessments and validation, and EEOC response strategy.