The U.S. Department of Justice (DOJ) said on June 9 that Equal Employment Opportunity Commission (EEOC) guidelines on disparate-impact liability are unconstitutional because they pressure employers to make employment decisions based on race.
That appraisal came in a new legal opinion issued by the DOJ’s Office of Legal Counsel (OLC), which provides legal advice to the president and the executive branch. Its opinions are considered binding within the executive branch.
The opinion ends the federal government’s decades-old interpretation of Title VII of the Civil Rights Act of 1964, which held that discriminatory intent may be assumed in some situations without being proven.
In other words, under the doctrine, businesses and governments could be found liable for practices deemed to disproportionately affect minorities even if no discrimination was intended.
The OLC legal opinion does not carry the same legal weight as a court-issued opinion, but it may make it more difficult for employees to succeed in discrimination claims before the EEOC. The opinion was prepared at the request of the EEOC.
The EEOC enforces federal anti-discrimination laws, including Title VII, against private and public employers.
The Supreme Court created the doctrine in its landmark 1971 decision in Griggs v. Duke Power Co. Black employees challenged the company’s requirement that a high school diploma and minimum scores on aptitude tests were needed for certain jobs and transfers.
The high court held that employment practices that seem neutral and don’t explicitly discriminate on racial grounds are unlawful if they have the effect of disproportionately excluding members of certain races and are not directly related to job performance.
The court determined that Title VII “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.”
Congress later codified the disparate impact framework in the Civil Rights Act of 1991. This meant that when plaintiffs showed a specific practice causes a disparate impact, the employer then had to prove the practice was needed for the job in question.
Over time, court decisions and agency regulations have extended the doctrine to age discrimination, lending discrimination, housing discrimination, and discrimination against people with disabilities.
Acting Attorney General Todd Blanche said the OLC opinion would do away with the doctrine at the EEOC.
“Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address,” he said in a statement.
“This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace,” Blanche said a day after President Donald Trump nominated him to take up the attorney general post.
The DOJ said the opinion helps the EEOC implement Trump’s Executive Order 14281 of April 2025, which rejected disparate-impact liability that “creates a near insurmountable presumption [that] unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups.”
“The fundamental problem is that disparate-impact liability tends to incent—and even coerce—employers to make race-based decisions to avoid liability or the threat of liability,” said the OLC opinion.
“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.”
Because this approach “divorces liability from circumstances giving rise to a strong inference that intentional discrimination occurred, it functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decisionmaking to avoid liability.”
“That approach is unlawful and unconstitutional,” the opinion said.
The OLC opinion is expected to be challenged in the courts.
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