DOJ's OLC Challenges EEOC's Disparate-Impact Guidelines as Unconstitutional

DOJ's OLC declares EEOC's disparate-impact guidelines unconstitutional, signaling narrower employer liability.

On June 9, 2026, the U.S. Department of Justice's Office of Legal Counsel (OLC) issued a significant opinion challenging the Equal Employment Opportunity Commission's (EEOC) guidelines on disparate-impact liability under Title VII of the Civil Rights Act of 1964. The OLC's memo declares these guidelines unconstitutional because they allegedly pressure employers to make race-based decisions, breaching the Constitution's equal-protection clause.

The DOJ's press release highlights that employment practices such as background checks, aptitude tests, and knowledge-based assessments are considered presumptively job-related and should not automatically subject employers to disparate-impact liability. Acting Attorney General Todd Blanche emphasized this point by stating, "Despite trying to promote equality, EEOC's disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address." (DOJ statement).

The OLC opinion is binding on federal agencies—including the EEOC—meaning it will influence government enforcement and guidance moving forward. However, it does not alter Title VII itself nor eliminate the private right to bring disparate-impact claims. Courts remain bound by existing U.S. Supreme Court precedent and federal law. As attorney Christopher Patrick of Jackson Lewis explained, "This is a significant shift in federal posture, but it is not itself a change in the statute or regulations." (SHRM analysis).

Katie Sandson of the National Women’s Law Center also underscored the distinction, noting, "Today’s DOJ opinion is just that: DOJ’s opinion. It does nothing to change the text or the purpose of Title VII." (SHRM analysis).

While the OLC's opinion signals a major shift in federal agency posture with respect to enforcement, it remains to be seen how the EEOC will respond and how this will play out in litigation. For now, employers should carefully monitor evolving guidance and consider how this narrower interpretation affects their risk management regarding discrimination claims.

Yes, but: The OLC opinion does not change Title VII or judicial precedent; private disparate-impact claims remain viable.

What's next: Watch for EEOC's official response and updates in enforcement policies following this OLC memo.