DOJ Continues to Shift Away from Disparate Impact Liability

The Department of Justice (DOJ) released a legal opinion concluding that the Equal Employment Opportunity Commission’s (EEOC) guidelines on disparate impact liability under Title VII of the Civil Rights Act are unconstitutional. The opinion is consistent with a broader administrative shift away from disparate impact liability. This opinion follows the Trump Administration’s Executive Order outlining its intent to eliminate the use of disparate impact liability and the DOJ’s rescission of its disparate impact regulations in 2025.

Disparate impact discrimination occurs when a seemingly neutral policy or action causes disproportionate and unjustified negative harm to a group, regardless of intent. The EEOC has long incorporated disparate impact liability in its rules and guidance. The opinion states that the EEOC’s Title VII guidelines are unconstitutional because they analyze liability without considering the employer’s likely intent and “functions as a qualified racial-proportionality mandate and spurs employers to engage in race-based decision making to avoid liability.”

Under the traditional disparate impact framework applied in Title VII litigation, a disparate impact plaintiff must demonstrate that an employer uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin. Then, the burden shifts to the employer to demonstrate that the challenged practice is job related to the position in question and consistent with business necessity. If the employer makes that showing, the burden shifts back to the complaining party to demonstrate that the employer “refuses to adopt an equally effective alternative employment practice” that would reduce the disparate impact relative to the original employment practice.

By contrast, under the DOJ’s framework, disparate impact plaintiffs must establish that the challenged employment practice specifically caused the disparate impact and must provide evidence that an equally effective alternative practice causes less disparate impact.
Importantly, this DOJ opinion does not change Supreme Court precedent or statutory interpretations of Title VII. The opinion reflects only a legal interpretation. As a result, employers can still face liability under Title VII for disparate impact discrimination.