The U.S. Equal Employment Opportunity Commission’s (EEOC) guidelines regarding disparate impact liability under Title VII of the Civil Rights Act of 1964 are inconsistent with the statute and raise serious constitutional concerns, the U.S. Department of Justice said in an opinion letter issued on June 9, 2026.

Quick Hits

• The DOJ issued an opinion finding that the EEOC’s guidelines on disparate impact liability under Title VII are unconstitutional, reasoning that they impose liability on employers based on disparate effects alone without regard to intent.
• The DOJ’s opinion emphasizes that the burden of proof regarding the unreasonableness of an employment practice and its causation of disparities lies with plaintiffs, rather than employers.
• The DOJ also found the EEOC’s guidelines on validation studies and voluntary affirmative action plans inconsistent with Title VII, and in the DOJ Office of Legal Counsel’s view, the Constitution.

The DOJ’s Office of Legal Counsel (OLC) concluded that the EEOC’s Title VII guidelines on disparate impact liability are inconsistent with Title VII and the U.S. Constitution because they potentially hold employers liable for workplace policies or practices that result in disparities based on, for example, race or sex, without regard to employers’ intent, and thereby pressure employers into making conscious employment decisions based on race or sex to avoid liability or a threat of liability.

The OLC opinion stated that it is in response to...

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