DOJ Concludes The EEOC’s “Disparate Impact” Framework Unconstitutional

What Happened?

On June 9, 2026, the U.S. Department of Justice’s Office of Legal Counsel (DOJ) issued a memorandum opinion concluding that the U.S. Equal Employment Opportunity Commission’s (EEOC) Title VII disparate impact framework is unconstitutional as interpreted and must be read narrowly to avoid violating the Constitution.

The DOJ’s opinion letter reflects a broader shift away from federal disparate impact enforcement and may signal a reduction in EEOC-led Title VII claims based solely on statistical disparities arising from an employer’s neutral employment practices or policies.

What’s Unconstitutional?

The DOJ declared the EEOC’s existing interpretations and guidelines as 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 decision-making.” According to the DOJ, some level of disparity among protected groups is inevitable and the EEOC’s guidelines functioned as a “qualified racial proportionality mandate” that forced employers to engage in race-based decision-making to avoid liability.

Out With the Old Disparate Impact Framework, In with the New

Previously, to bring a disparate impact claim, Title VII plaintiffs had to show significant statistical disparities caused by specific policies or practices. To defend against the claim, the employer had to show the policy or practice served a legitimate business purpose. The plaintiff then had to show that a less discriminatory alternative policy or practice existed to succeed on the employment discrimination claim.

The DOJ’s opinion provided three limiting principles on disparate impact liability.

1. The “business-necessity” defense is not a high bar. Employers may continue to use hiring and selection procedures, such as background checks, aptitude tests, knowledge-based tests, SAT scores, high-school graduation requirements, or blind auditions without violating Title VII, even if those practices produce unequal demographic outcomes. To justify a policy or practice, employers only need to show a challenged practice or policy is rational, convenient, or helpful for a valid business purpose.
2. Plaintiffs must satisfy a “robust causality requirement”. To satisfy a prima facie case of disparate impact, plaintiffs must demonstrate that the particular practice or policy “actually ‘causes a disparate impact.’” Plaintiffs cannot use external factors or other practices/policies to show the challenged practice/policy caused the disparate impact.
3. Plaintiff must provide evidence of an equally effective alternative practice or policy. Finally, the plaintiff must offer an alternative practice or policy that carries out the employer’s legitimate goals and is less problematic. To do this, the plaintiff’s proposed alternative must be “equally effective” in achieving the employer’s goals including the cost or other burdens.

Federal Landscape is Paved, But State-Law Obligations Remain Rocky

This opinion creates a potential conflict for employers operating in multiple states. Although the DOJ’s opinion addresses federal Title VII enforcement, state law may impose different or broader obligations.

For example, Illinois Senate Bill 3777, the Civil Rights Safeguard Act, codified disparate-impact protections under the Illinois Human Rights Act, making it a civil rights violation to use “criteria or methods” that have the effect of subjecting individuals to discrimination unless those criteria are job related and consistent with business necessity.

Similarly, New York amended the New York State Human Rights Law to provide that a facially neutral employment practice may violate state law based on its discriminatory effects, even without proof of discriminatory motive. New York’s standard requires employers to show job-relatedness and business necessity once disparate impact is shown and allows an employee to prevail by identifying a less discriminatory alternative.

It remains unclear how the DOJ’s opinion will affect state-law disparate impact standards. In the meantime, employers must navigate competing risks when neutral policies or practices produce potential racial disparities. Maintaining those policies may be a litigation risk but revising them based on racial outcomes may create its own legal risk.