DOJ ‘declares’ EEOC’s disparate-impact framework unconstitutional

On June 9, 2026, the Department of Justice’s (DOJ) Office of Legal Counsel (OLC) issued a memorandum opinion concluding that the Equal Employment Opportunity Commission’s (EEOC) longstanding interpretation of disparate-impact liability under Title VII of the Civil Rights Act of 1964 is unconstitutional. The opinion was authored by Assistant Attorney General T. Elliot Gaiser and Deputy Assistant Attorney General Joshua J. Craddock in response to a request from EEOC Chair Andrea R. Lucas.

Constitutional problem

The OLC finds that EEOC’s Uniform Guidelines on Employee Selection Procedures—in effect since 1978—and related guidance “embrace an unconstitutional reading of Title VII” because they contemplate liability based on disproportionately adverse effects alone, without regard to whether an employer likely engaged in intentional discrimination. According to the OLC, this approach “functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decision-making to avoid liability.”