DOJ: EEOC Disparate Impact Guidelines “Pressured Employers to Engage in Racial Discrimination”

On June 9, 2026, the U.S. Department of Justice (DOJ) issued an opinion stating that the U.S. Equal Employment Opportunity Commission’s (EEOC) disparate impact guidelines for evaluating employment discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII) are unconstitutional. According to the DOJ, the EEOC’s guidelines are unconstitutional because they “pressured employers to engage in race discrimination,” while also allowing employers to be held liable for “unequal hiring and promotion outcomes among different groups, without regard to the employer’s likely intent.”

The DOJ’s opinion states that the disparate impact theory should only prohibit employment practices that “reflect a significant likelihood of intentional discrimination.” Further, the opinion establishes a two-part test for proving a disparate impact claim and validates the business necessity defense against such claims under Title VII.

The DOJ’s Opinion Follows the Lead of Executive Order 14281

In a press release accompanying the opinion, the DOJ states that it is a direct response to Executive Order 14281, issued on April 23, 2025. Executive Order 14281 states that, “[d]isparate-impact liability is wholly inconsistent with the Constitution and threatens the commitment to merit and equality of opportunity that forms the foundation of the American Dream.”

According to the DOJ’s press release, the EEOC’s guidelines “foster[] the very discrimination [they] seek to address,” and the press release quotes EEOC Chair Andrea Lucas as stating that the opinion “will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters.” While the EEOC’s guidelines allowed employees to pursue Title VII claims based on disparate impact alone, the DOJ’s approach requires a higher burden of proof for employees, and allows employers to use aptitude tests, criminal background checks, and other tools, as long as they can show that doing so is “reasonable, useful, or helps serve a valid business purpose.”

What Employees Must Prove to Establish a Disparate Impact Claim Going Forward

While Executive Order 14281 states that it is the policy of the United States, “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible,” the DOJ’s opinion does not eliminate the disparate impact theory in its entirety. According to the DOJ, employees can still pursue disparate impact claims, but they must satisfy a two-part test, establishing that:

(1) The challenged employment practice “specifically caused the alleged disparate impact;” and,

(2) An “equally effective alternative practice causes less disparate impact.”

In practical terms, this substantially raises the bar for employees to successfully establish disparate impact claims against their employers.

Previously, employees bore the burden of establishing a prima facie case by showing that a neutral policy caused a disparate impact. The burden then shifted to the employer to show that its practice was reasonable and served a legitimate business purpose. If the employer was able to show a legitimate business purpose, only then did the employee have the burden of showing that a less discriminatory alternative existed.

Employers with questions about how the new DOJ opinion may impact their employment practices should contact any of our employment attorneys.