DOJ Memo Narrows Title VII Disparate-Impact Theory

Overview

• The Office of Legal Counsel issued the opinion on Tuesday, June 9, 2026, concluding that the EEOC’s long-standing disparate-impact approach is unconstitutional as written.
• The memo says disparate impact can only help show intentional discrimination and is no longer an independent path to liability, and it calls the Uniform Guidelines on Employee Selection Procedures and the EEOC’s Affirmative Action Guidelines constitutionally flawed.
• Because OLC opinions bind executive agencies, the DOJ view is already guiding EEOC priorities and internal enforcement choices even though the regulations named in the memo remain codified.
• Practically, employers face lower federal exposure for common screens like tests, degree rules and criminal-history exclusions while plaintiffs must identify the exact policy causing a disparity and prove an equally effective, less discriminatory alternative.
• The next battlegrounds are likely to be federal courts and agency rulemaking, with states such as California and New York continuing to apply broader disparate-impact rules and creating a patchwork of enforcement outcomes.