By G. Scott Fiddler and Kishana Ambe

I. Overview

On June 9, 2026, the Department of Justice’s Office of Legal Counsel published a Memorandum Opinion for the Chair of the U.S. Equal Employment Opportunity Commission addressing the constitutionality of disparate-impact liability under Title VII of the Civil Rights Act of 1964. According to the opinion, the EEOC’s interpretative rules, opinions, and guidance documents implementing disparate-impact liability violate both Title VII and the Constitution of the United States.

At the heart of the DOJ’s reasoning is the conclusion 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. In the DOJ’s view, a facially neutral employment practice that produces an unintentional disparate impact does not offend the Constitution, yet the EEOC’s approach effectively pressures employers into race-based decision-making to avoid liability.

The opinion concludes that, properly understood, disparate-impact analysis is merely an “evidentiary device” used to “smoke out” practices that reflect a significant likelihood of intentional discrimination—not a freestanding prohibition on statistical imbalance. Notably, the DOJ did not declare Title VII unconstitutional; it read the statute narrowly to avoid that result.

II. Why the DOJ Can Direct the EEOC

The opinion comes from the DOJ’s Office of Legal Counsel, which speaks for the Attorney General on legal questions within the executive branch. So, the EEOC is expected to fall in line and conform its enforcement priorities, guidance, and litigation positions accordingly. Its existing guidelines, however, are already on the books as federal regulations, and formally changing or rescinding them takes a rulemaking process, so for now they remain in effect.

III. Does the Opinion Bind the Courts?

An OLC memorandum opinion does not bind the courts because it is legal advice for the executive branch, not law. Courts are not required to follow it and owe it no deference. The opinion does not change any statute or overrule any court decision. Only Congress, by amending the law, or the courts, by reinterpreting it, can change the law that judges apply.

Because the opinion does not change any statute or overrule any decision, it does not by itself alter existing case law. Its real influence will play out through the positions the DOJ and the EEOC take going forward, including the arguments they raise in court and the cases they choose to pursue.

IV. What is Disparate-Impact Liability?

Title VII prohibits employers from making employment decisions because of someone’s race, color, religion, sex, or national origin. In Griggs v. Duke Power Co., 401 U.S. 424 (1971), the Supreme Court went a step further and said employers can be held liable even when they didn’t intend to discriminate. That is, if an employer had a neutral policy like a proficiency test or screening requirement that disproportionately affected a protected group, that employer could be liable for disparate-impact discrimination.

Griggs did not remain merely a judicial decision. Congress amended Title VII in 1991 to address disparate-impact liability, producing the three-step framework that still governs these claims today and preserving the requirement that a plaintiff point to the specific practice that caused the disparate impact. In the DOJ’s view, however, Griggs should be read far more narrowly than it has been for decades.

V. The DOJ’s Three Required “Corrections”

The DOJ adopted three corrections to limit the previous principles on disparate-impact liability to ensure compliance with Title VII and the Constitution. The three corrections include:

1. Low bar for business-necessity defense: employers only need to demonstrate that the challenged practice is rational, convenient, or helpful for serving a valid business purpose. Workplace requirements and selection procedures like background checks, aptitude tests, and SAT scores are presumptively job-related.
2. Robust causality requirement: the plaintiff must identify the specific employment practice that caused the disparate impact and plead the specific facts that connect the challenged practice and the disparate impact. A plaintiff cannot rely only on general statistical imbalances.
3. Equally effective alternative: the plaintiff must show an available alternative employment practice with less disparate impact would also equally serve the employer’s goals.

VI. EEOC’s Guidelines Deemed Unlawful

The DOJ found the EEOC’s validation-study and Affirmative Action Guidelines both violate Title VII and the Constitution.

Validation study structure: Under the EEOC’s Guidelines, a validation study is the main way an employer proves that a challenged test or criterion is closely enough related to job performance to justify its disparate impact. The DOJ concluded that this structure burdens nearly all employers, wrongly shifts specific causation to the employer, and demands far more than the business-necessity defense requires—which asks only whether a practice reasonably serves a valid interest.

Affirmative Action Guidelines: The DOJ held that these guidelines unconstitutionally encourage race-conscious preferences in response to actual or merely anticipated disparate-impact claims.

VII. What Should Employers Do Now?

In responding to EEOC charges and investigations, employers should feel more at ease knowing that under the DOJ’s view, common hiring selection tools like proficiency tests, background checks, and various screening criteria are presumptively job-related and can be used to support a business-necessity defense. That comfort, however, is largely limited to federal administrative enforcement. The DOJ’s opinion may have little or no effect on what happens in court where private plaintiffs may still bring disparate-impact claims. Courts may continue to interpret Griggs and Title VII as broadly as they have in the past.

Employers should also be cautious about abandoning existing validation work. The Uniform Guidelines remain codified, and validation evidence an employer already has continues to be useful in defending a challenged selection procedure.

However, employers who have implemented voluntary affirmative-action plans and diversity-driven goals or timetables may want to reassess these plans given the DOJ’s position that there is no “diversity” business-necessity defense. That review is best done with legal counsel because internal self-audits of workforce statistics can end up in the hands of a plaintiff in later litigation.

The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice. For more information, please contact a member of the Labor and Employment practice.

Meet Scott

G. Scott Fiddler is board certified in both labor & employment law and civil trial law, placing him among only approximately 25 attorneys in Texas board certified in both specialties. As lead trial attorney, Scott has tried nearly 60 cases to verdict, including 40 jury trials and nearly 20 arbitrations and bench trials. Scott’s resume is one of impressive wins in jury trials and published cases. He has obtained jury verdicts for clients in FLSA wage and hour cases, non-compete and misappropriation of trade secret cases, discrimination, executive termination, and sexual harassment cases. In recognition of his practice, Scott has been named to The Best Lawyers of America list, Super Lawyers list, Lawdragon’s list of the 500 leading U.S. Corporate Employment Lawyers, and Chambers USA.

Meet Kishana

Kishana Ambe is an accomplished litigation attorney with a background in discovery management and records analysis, drawing on years of experience directing records departments for Am Law 200 firms. She has systematically organized complex pleadings and voluminous medical records for senior trial counsel and has designed and delivered comprehensive training programs on industry-standard legal-records software. In recognition of her practice, Kishana has been named to Best Lawyers: Ones to Watch list.