OLC holds the EEOC's disparate-impact rules unconstitutional

The Department of Justice’s Office of Legal Counsel issued a memorandum opinion on 9 June 2026 addressed to the Chair of the Equal Employment Opportunity Commission, concluding that the Commission’s disparate-impact interpretations of Title VII are unconstitutional.¹ Chair Andrea R. Lucas had asked by letter of 2 February 2026 “whether the disparate impact provisions in Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, are constitutional as currently interpreted and applied, particularly by the [EEOC] in its interpretative rules and guidance documents.”¹ The opinion’s answer is three words: “They are not.”¹ It is signed by T. Elliot Gaiser, Assistant Attorney General, and Joshua J. Craddock, Deputy Assistant Attorney General.¹

1. The statute is not the target; the reading of it is. The opinion accepts that the Supreme Court construed Title VII to include disparate-impact liability in Griggs v. Duke Power Co. and that “Congress acquiesced in that interpretation when it amended Title VII in 1991,” citing the codification at 42 U.S.C. § 2000e-2(k).¹² What it rejects is liability untethered from intent. The EEOC’s approach, it says, treats disproportionate effects as sufficient on their own, “[r]ather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination — imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination.”¹ The method is stated plainly in the roadmap: Part III “deploys constitutional avoidance to interpret Title VII consistent with necessary safeguards against unconstitutional applications of disparate-impact liability.”¹

2. The reinterpretation sets three thresholds. On the substantive standard, “[p]roperly understood, disparate-impact liability proscribes only those practices that reflect a significant likelihood of intentional discrimination.”¹ On the employer’s defence, “[t]he business-necessity defense requires employers to demonstrate only that the challenged practice rationally serves a valid business purpose,” and “[w]orkplace requirements and selection procedures — such as background checks, aptitude tests, and SAT scores — are presumptively job-related,” so that “[o]nly irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.”¹ On proof, plaintiffs “must satisfy a robust causality requirement” showing the challenged practice itself caused the impact, and “must establish with particular evidence that there is an available alternative practice that causes less disparate impact and would be equally effective for serving the employer’s valid business purpose.”¹

3. Two sets of EEOC regulations are declared unlawful outright. The opinion concludes that “EEOC’s current validation-study and affirmative-action regulations are unlawful,” and closes that “[s]etting an appropriate threshold for business necessity, requiring robust causality, and demanding evidence of an equally effective alternative practice that causes less disparate impact are essential prerequisites to any imposition of liability.”¹ The Uniform Guidelines on Employee Selection Procedures, the 1978 framework at 29 CFR part 1607, are named in the opinion’s second paragraph among “EEOC’s existing interpretations” embracing the unconstitutional reading.¹³ A footnote limits the analysis’s reach to Title VII: disparate-impact liability under the Age Discrimination in Employment Act, recognised in Smith v. City of Jackson, is treated differently because “age is not a ‘suspect class.’”¹⁴

4. An OLC opinion is not advice within the executive branch. Executive Order 14215 of 18 February 2025 provides that legal interpretations issued by the President or the Attorney General are controlling on executive-branch employees, and OLC exercises the Attorney General’s opinion-giving authority by delegation under 28 U.S.C. 510–513 and 28 CFR 0.25(a).⁵¹ The consequence is administrative rather than judicial: agencies conform their own regulations to the opinion without any court passing on it. That is already visible in the published record of this arc — the Title VI deletions across agencies, the rescission of the EO 11246 implementing regulations, and the executive order that began the sequence (see EO 14281 directs rollback of disparate-impact regulations, Seventeen agencies delete disparate impact from their Title VI regulations and Labor rescinds the Executive Order 11246 regulations and finds it lacks authority for them).⁶