06-17-2026
The Department of Justice’s Office of Legal Counsel released an opinion regarding the EEOC’s guidelines on disparate impact under Title VII. EEOC Chair Andrea Lucas requested the DOJ review.
In its opinion, the DOJ stated Title VII “guarantees equal treatment, not equal outcomes.” A disparate impact claim argues that the impact of facially neutral employment policies and practices is discriminatory. It does not consider the employer’s intent. The DOJ concluded that pressuring employers to “take race-based actions in the name of proactively addressing potential statistical disparities” allows the government to engage in race discrimination indirectly. Instead, the DOJ stated employer liability may only result from “irrational or arbitrary practices with no plausible job-relatedness.”
To pursue potential disparate impact claims under Title VII, the DOJ set forth three requirements.
- Employers may broadly establish a business necessity and show that the practice rationally serves a valid business purpose.
- Plaintiffs bear the burden of proving that a policy causes a disparate impact.
- Plaintiffs must show that the employer could have met its business goals using an alternative but equally effective option that would result in a reduced disparate impact.
The DOJ relied on the U.S. Supreme Court’s recent decision in Callais v. Louisiana to support its opinion. That decision narrowed the standard for establishing race discrimination under the Voting Rights Act, requiring a strong showing of intentional discrimination.
Employers may continue to use tools (including aptitude tests, knowledge-based assessments, criminal background checks, and other criteria) even if these practices may result in disparate impact on different demographic groups provided the employer can show the tools are reasonable, useful, or serve a valid business need.
Takeaway: While the DOJ opinion is not legally binding on employers, it demonstrates how the EEOC and federal government will approach disparate impact claims. The U.S. Supreme Court has not addressed the shift in approach. Employers should be aware that this opinion does not impact state laws that allow broader disparate-impact claims.