The Department of Justice’s Office of Legal Counsel has issued an opinion addressed to the Equal Employment Opportunity Commission, finding that the EEOC’s current Title VII guidelines “pressure employers to engage in race-based decisionmaking” and calling them “unconstitutional.” This compliance alert considers the implications of this latest challenge to established legal theory and makes recommendations for organizations considering their next move.
Summary
The Office of Legal Counsel issued a slip opinion on June 9, 2026, “Constitutionality of Disparate-Impact Liability Under Title VII”. Within, it ruled that the EEOC’s Title VII guidelines “are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer’s likely intent, and pressure employers to engage in race-based decisionmaking.”
It went on to claim that a proper understanding of disparate-impact liability “proscribes only those practices that reflect a significant likelihood of intentional discrimination.” This is consistent with the EEOC’s own movements in recent days, as the Commission recently published a new National Enforcement Plan (NEP) specifically de-emphasizing disparate impact liability theory, pledging to eliminate its use “to the maximum degree possible” (echoing wording in EO 14281, “Restoring Equality of Opportunity and Meritocracy.”)
Disparate impact liability has been one of the major building blocks of employment discrimination law since its recognition by the Supreme Court in Griggs vs. Duke Power Co. (1971) and subsequently when Congress codified its use in the Civil Rights Act of 1991. Though established legal theory holds that practices such as aptitude tests, SAT scores, and background checks can be “fair in form, but discriminatory in operation,” the opinion states the belief that they can instead be used without fear of violating Title VII.
The opinion also states that plaintiffs who bring a disparate impact claim must:
- Show that the specific hiring practice directly caused the unequal outcomes they are challenging
- Identify an alternative approach that would be equally effective for employers but would result in fewer unequal outcomes
Who Is Impacted and What Actions Are Required?
As with many recent activities at the DOJ, EEOC, and other agencies, this new opinion is chiefly a legal interpretation that justifies and shapes federal enforcement priorities. It is not a court ruling or a statute, and it lacks the necessary authority to repeal disparate impact liability under Title VII, or to overturn case law or an act of Congress.
Its impact will therefore be limited to your organization’s interactions with the EEOC and other agencies. Through that lens, the opinion is just the latest reaffirmation of their intent to focus less on disparate impact liability in favour of investigations into what they see as “intentional discrimination” (particularly, as per the EEOC’s new NEP, “Those policies, programs, or practices labeled or framed as “diversity, equity, and inclusion” (DEI) or similar euphemisms”).
As we will continue to emphasize, disparate impact remains valid law, and even though it has fallen out of favor with the EEOC, organizations must remember that:
- Private plaintiffs can still bring disparate impact claims, and the courts are not bound by the executive branch’s current determinations
- Many states and localities have their own disparate impact requirements
- The OFCCP still operates affirmative action for people with disabilities and veterans, and disparate impact analysis is still required as part of selection procedure validation
- Other forms of disparity, such as pay, are still part of the EEOC’s ongoing enforcement
Based on these realities, Affirmity strongly recommends that you continue to regularly self-audit your selection procedures using statistical analyses to ensure fair employment practices.
How Affirmity Can Help
Federal enforcement’s posture is changing, but the nature of an effective defense remains much the same. The foundation is the same as it ever was: clean data, documented processes, and rigorous analysis. Abandoning regular monitoring and analysis doesn’t eliminate risk, it creates blind spots. Affirmity is on hand to assist with the following solutions:
- Workforce analysis software and services
- Workforce compliance services, including Section 503, VEVRAA, EEO-1, and VETS-4212
- Compensation and pay equity analysis
- Risk assessment services covering DEI programs, AI use, and more
Protect your organization from shifting agency priorities: Contact our team of experts today.
About the Author
Kim Hendon oversees account management and sales for Affirmity. She is responsible for building successful, long-term partnerships with clients and generating new business. Having served with the company for more than 25 years, Ms. Hendon has in-depth knowledge and broad experience in all areas of workforce analytics and HR compliance.
Ms. Hendon assists clients with the planning and development of workforce compliance and non-discrimination programs, as well as employee engagement initiatives. She holds a Bachelor of Arts in Speech Communication and a Master’s in Business Administration. Connect with her on LinkedIn.