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DOJ opinion signals potential shift in EEOC disparate impact framework

6/23/26

By: Katie Graham

Background and DOJ opinion

The U.S. Department of Justice recently issued an opinion challenging the constitutionality of how the Equal Employment Opportunity Commission (“EEOC”) currently interprets disparate impact liability under Title VII. On June 9, 2026, the DOJ Office of Legal Counsel concluded that the EEOC’s existing interpretative rules and guidance documents unconstitutionally promote race-based decision-making and racial proportionality in an effort to avoid disparate impact liability. This opinion signals a potential shift toward narrowing disparate impact liability and reshaping how employers evaluate hiring and employment practices.

Key findings

The DOJ concludes that the EEOC’s framework is unconstitutional because it permits liability based solely on statistical disparities, without regard to employer intent. The opinion emphasizes that disparate impact should function only as an evidentiary tool to identify employment practices that suggest a strong likelihood of intentional discrimination.

To that end, the DOJ endorses several changes:

• Employers should only need to show a rational, legitimate business purpose to satisfy the business-necessity defense.
• Common hiring tools such as background checks, aptitude tests, knowledge-based tests, SAT scores, high school graduation requirements, or blind auditions should be presumed job-related.
• Plaintiffs must identify a specific employment practice and prove it caused the alleged disparity, rather than relying on general statistical imbalances.
• Plaintiffs must show an available and equally effective alternative employment practice that would reduce the disparity.

Practical impact

Although the opinion itself does not change existing law, it signals that employers may face reduced exposure based solely on statistical disparities. For now, employers should continue to comply with existing EEOC guidance, while ensuring their practices are grounded in clear, business-based justifications and monitoring developments closely.

Employer takeaways

• Continue adhering to current EEOC guidance unless and until courts or regulators formally adopt changes.
• Ensure employment practices are supported by well-documented, legitimate business justifications.
• Evaluate hiring and screening tools for job-relatedness and consistency with business needs.
• Monitor legal developments closely, as this opinion may influence future litigation and regulatory shifts.

For more information, please contact Katie Graham at katie.graham@fmglaw.com.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.