DOJ Opinion Letter Questions EEOC Disparate Impact Framework and Uniform Guidelines

June 9, 2026

What's New

The Department of Justice’s Office of Legal Counsel (OLC) has issued an opinion letter to the Equal Employment Commission (EEOC) concluding that the EEOC’s interpretations of Title VII disparate impact liability are unconstitutional as they “contemplate liability based on disparate effects alone, without regard to an employer’s likely intent.”

The opinion frames disparate impact as an evidentiary tool “to smoke out intentional discrimination,” and offers three limiting principles: (1) employers need only show that a challenged practice reasonably serves a valid business purpose; (2) background checks, aptitude tests and other workplace requirements are presumptively job-related; and (3) plaintiffs must demonstrate a challenged practice caused disparate impact and provide evidence of an equally effective alternative.

It also concludes that EEOC validation study regulations, affirmative action guidance, and portions of the Uniform Guidelines are inconsistent with Title VII and the Constitution.

What It Means

Because OLC opinions bind the Executive Branch, the EEOC is expected to align its enforcement positions and guidance with the opinion. Employers should anticipate rescission or significant revision of EEOC materials, including the Uniform Guidelines. Although not binding on courts, the opinion’s reasoning will likely be cited by employers in disparate-impact litigation.

What You Should Do

While the opinion raises questions about longstanding employment practices and creates near-term uncertainty, employers should exercise caution before making changes until the judicial response becomes clearer. As always, employers must ensure they have clear business justifications for their employee selection procedures. Consider attending CWC’s Talent Acquisition Compliance Summit for further discussion.

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