On June 9, 2026, the U.S. Department of Justice Office of Legal Counsel announced the issuance of a slip opinion to the Equal Employment Opportunity Commission (EEOC) regarding disparate impact liability. The slip opinion holds that the EEOC’s guidelines on disparate impact liability under Title VII of the Civil Rights Act could lead to employer liability for unequal hiring and promotion outcomes among different groups, without regard to the employer’s likely intent. The opinion concluded that the guidelines pressured employers to engage in racial discrimination and were therefore unconstitutional.
According to the opinion, businesses may utilize hiring practices related to job performance—including aptitude tests, knowledge-based tests, criminal-background checks, and SAT scores—without violating Title VII, even if such practices result in different outcomes for different demographic groups. The opinion also sets out a framework for plaintiffs bringing a disparate impact claim. First, the plaintiff must show that the specific hiring practice caused the unequal outcomes the plaintiff is challenging. And second, the plaintiff must identify another approach the employer could use that would be equally effective for the employer but which would result in fewer unequal outcomes.
DOJ slip opinions do not have the force of law. Rather, they serve as internal guidance within the Executive Branch in guiding the actions of government officials.
