DOJ Opinion Finds EEOC Disparate Impact Liability Guidelines Unconstitutional

Quick Hits

• The DOJ issued an opinion finding that the EEOC’s guidelines on disparate impact liability under Title VII are unconstitutional, reasoning that they impose liability on employers based on disparate effects alone without regard to intent.
• The DOJ’s opinion emphasizes that the burden of proof regarding the unreasonableness of an employment practice and its causation of disparities lies with plaintiffs, rather than employers.
• The DOJ also found the EEOC’s guidelines on validation studies and voluntary affirmative action plans inconsistent with Title VII, and in the DOJ Office of Legal Counsel’s view, the Constitution.

The DOJ’s Office of Legal Counsel (OLC) concluded that the EEOC’s Title VII guidelines on disparate impact liability are inconsistent with Title VII and the U.S. Constitution because they potentially hold employers liable for workplace policies or practices that result in disparities based on, for example, race or sex, without regard to employers’ intent, and thereby pressure employers into making conscious employment decisions based on race or sex to avoid liability or a threat of liability.

The OLC opinion stated that it is in response to an inquiry from EEOC Chair Andrea Lucas asking for additional legal analysis on the limits of disparate impact liability, a concept first recognized by the Supreme Court of the United States in its 1971 decision in Griggs v. Duke Power Co. The U.S. Congress later codified the burden-shifting framework for disparate impact liability recognized in Griggs with the Title VII of the Civil Rights Act of 1991, codified at 42 U.S.C. 2000e-2(k). The OLC’s opinion suggests disparate impact liability under Title VII is only tenable for “practices that reflect a significant likelihood of intentional discrimination.”

In a statement, the DOJ was explicit that the opinion “helps to implement” President Donald Trump’s Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy,” which directed federal agencies to stop enforcing disparate-impact liability. Meanwhile, the EEOC has already stopped enforcing claims based on disparate impact theories, and on June 4, 2026, the EEOC issued a national enforcement plan formally prioritizing disparate treatment (intentional discrimination) over disparate impact claims that allege disparities without evidence of a pattern or practice of discrimination.

DOJ’s Framework Puts Burden on Plaintiffs

The OLC said “three corrections” are needed to resolve the tensions between disparate impact claims under Title VII and a “color-blind Constitution.” First, employers’ “business necessity” defense should “not [be] a high bar.” Employers need only show “that the challenged practice is rational, convenient, or helpful for serving a valid business purpose.”

The OLC went on to state that “[e]mployment practices are presumptively job-related, and only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.” Moreover, “[w]orkplace requirements and selection procedures—such as background checks, aptitude tests, knowledge-based tests, SAT scores, high-school graduation requirements, or blind auditions—are presumptively job-related,” the opinion stated.

Second, the OLC stated that the burden should be on plaintiffs to plead and prove that a specific employment practice caused the disparity, rather than pointing to workforce imbalance or outside social conditions.

Third, the burden should be on plaintiffs, not employers, to identify an alternative practice that causes less disparate impact and is equally effective for the employer’s legitimate needs, including cost and administrability, the OLC stated.

DOJ Objections to Specific EEOC Guidelines

Uniform Guidelines on Employee Selection Procedures

Under the EEOC’s version of the Uniform Guidelines, 29 C.F.R. part 1607, if a “total selection process” (as defined in the guidelines) has an adverse impact then the employer must show both the “validity and utility of” the selection procedure. The OLC found such validation-study requirements to be “inconsistent with Title VII’s business-necessity defense.” The OLC said they improperly shift work to employers, requiring them to isolate the cause of a disparity, even though Title VII places the causation burden on plaintiffs.

Affirmative Action Guidelines

The DOJ also objected to the EEOC’s framework for voluntary affirmative action plans, 29 C.F.R. part 1608, which establishes a process for employers to discover and address potential disparities. But the DOJ stated that these guidelines endorse unconstitutional racial preferences.

While the Supreme Court of the United States has previously held that Title VII permits certain voluntary, remedial race-conscious affirmative action plans, the DOJ opinion criticized those decisions as inconsistent with Title VII and said they have been “fatally undercut” by more recent Supreme Court precedent regarding racial preferences. Regardless, the EEOC has already backed away from voluntary affirmative action plans and recently submitted a proposal to rescind the 1979 interpretive rule on affirmative action under Title VII

Key Takeaways

While the OLC opinion does not entirely dismiss Title VII disparate-impact liability, it construes it narrowly as only an evidentiary tool for identifying practices that create a strong inference of intentional discrimination—not as a freestanding statistical-parity rule. Still, the finding is not a formal court ruling on the merits of disparate impact liability, which will be decided by federal courts.

Moreover, it is important to note that disparate impact claims may still be pursued by private litigants under federal law. In addition, many states recognize disparate impact liability under their antidiscrimination laws and may provide effective guidance on employers’ compliance obligations. Some states have even moved to reinforce or expressly recognize disparate impact liability over the past year in reaction to the federal government’s efforts to deemphasize enforcement on this basis.

As such, employers may wish to consider conducting privileged proactive audits to evaluate workplace practices and document the business reasons for workplace policies and practices.

Ogletree Deakins’ Diversity, Equity, and Inclusion Compliance Practice Group and Workforce Analytics and Compliance Practice Group will continue to monitor developments and will provide updates on the Background Checks, Diversity, Equity, and Inclusion Compliance, Employment Law, and Workforce Analytics and Compliance blogs as additional information becomes available.

This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ Administration Resource Hub.

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