DOJ Opinion Calls Disparate Impact Theory Unconstitutional

The U.S. Department of Justice (DOJ) has issued a legal opinion challenging an established doctrine in employment discrimination law, arguing that the federal government’s longstanding approach to disparate impact liability under Title VII of the Civil Rights Act of 1964 may exceed both statutory and constitutional limits.

The June 9 opinion from the DOJ’s Office of Legal Counsel (OLC) does not change Title VII itself, nor does it eliminate disparate impact as a private right of action. Plaintiffs may still bring such claims, and courts remain bound by existing U.S. Supreme Court precedent and federal statutes. But the opinion signals that the Trump administration is taking a markedly different view of a doctrine that has shaped employment discrimination law for decades. The opinion follows last year’s executive order calling disparate impact liability unlawful.

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Challenge to a Longstanding Legal Doctrine

Disparate impact liability (or adverse impact) differs from intentional discrimination claims because it focuses on outcomes rather than motive. Under the theory, employers may face liability when a facially neutral policy disproportionately impacts a group, based on a protected characteristic, cannot be justified by business necessity, or the person bringing the claim can point to a less discriminatory that would serve the employer’s interest as effectively and that the employer refused to adopt. The doctrine originated in the Supreme Court’s 1971 decision in Griggs v. Duke Power Co. and was later codified by Congress in the Civil Rights Act of 1991.

For decades, employers have relied on the U.S. Equal Employment Opportunity Commission’s (EEOC’s) guidance, technical assistance and the Uniform Guidelines on Employee Selection Procedures to validate hiring and promotion practices against disparate impact challenges. The DOJ opinion calls that framework into question.

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Christopher Patrick, an attorney with Jackson Lewis in Denver, said the significance of the opinion lies less in its immediate legal effect than in what it reveals about the federal government’s changing position.

“This is a significant shift in federal posture, but it is not itself a change in the statute or regulations,” he explained. “Private plaintiffs can still bring Title VII disparate-impact claims, and the Uniform Guidelines on Employee Selection Procedures remain codified and continue to be cited by courts as the standard approach to evaluating selection practices.”

What has changed, he said, is the government’s view of a framework that employers have relied upon for nearly half a century. “OLC is now saying that framework asks too much.”

The opinion draws heavily from the Supreme Court’s recent decision in Louisiana v. Callais, which narrowed results-based liability under the Voting Rights Act. According to Patrick, “OLC is importing that constitutional-avoidance logic into Title VII.”

Under that approach, statistical disparities would be relevant only insofar as they help identify intentional discrimination. As Patrick noted, the opinion argues that disparate impact liability should function as “a tool for identifying practices that strongly suggest intentional discrimination — not as a mechanism for imposing results-based proportionality.”

The opinion also arrives amid broader changes at the EEOC. Under Chair Andrea Lucas, the EEOC has signaled skepticism toward disparate impact theories and has increasingly emphasized claims involving intentional discrimination. Over the past year the agency has deprioritized disparate impact, reflecting a broader philosophical shift within the federal government’s civil rights enforcement apparatus.

The Future of Title VII Enforcement

Critics, however, argue that the DOJ’s position conflicts with decades of precedent from both Congress and the courts.

Katie Sandson, an attorney at the National Women’s Law Center in Washington, D.C., emphasized that the opinion does not alter the legal status of disparate impact claims. “Today’s DOJ opinion is just that: DOJ’s opinion,” she said. “It does nothing to change the text or the purpose of Title VII.”

She further described disparate impact claims as “a crucial civil rights enforcement tool for eradicating discriminatory barriers to employment for historically marginalized and otherwise vulnerable communities across the country.”

Sandson also noted that any effort by the EEOC to alter its own regulations or guidance in response to the DOJ’s position would require a formal administrative process.

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Patrick believes the opinion may ultimately be less about current enforcement and more about positioning the issue for future judicial review. 

“Looking ahead, the memo may also signal that DOJ is looking for the right vehicle to take this argument to the Supreme Court,” he said, perhaps in a case where an employer loses a disparate-impact challenge despite having a rational business justification because a court applied a more demanding validation standard.

“That is the kind of case where DOJ could appear as amicus and argue that the traditional EEOC validation regime, as applied, exceeds Title VII and raises serious constitutional concerns.”

For now, employers remain subject to existing disparate impact liability under Title VII and similar equal employment opportunity laws, and courts continue to recognize such claims. But the DOJ’s opinion suggests that one of the foundational concepts of modern employment discrimination law may soon face renewed scrutiny. Whether that scrutiny ultimately leads to a narrowing of disparate impact liability may depend on whether the administration succeeds in bringing the issue before the Supreme Court.