DOJ Memo Questions Constitutionality of Disparate-Impact Discrimination Theory

The Trump administration is mounting a systematic challenge to disparate-impact discrimination theory, a foundational concept in employment law that has shaped how courts and regulators evaluate neutral workplace policies with unequal effects on protected groups.

A June 2026 Department of Justice (DOJ) memorandum significantly escalates that effort by declaring the EEOC’s longstanding interpretation of Title VII unconstitutional, writes Christina M. Jepson of Parsons Behle & Latimer.

Disparate-impact liability originated with the Supreme Court’s 1971 decision in Griggs v. Duke Power Co. and was later codified in the Civil Rights Act of 1991.

Under this framework, neutral policies that disproportionately harm a protected class can make employers liable—even without discriminatory intent—unless business necessity justifies the policy. “For example, a requirement that employees be able to lift 100 pounds may have a disproportionate impact on women and is not legal unless it is justified by business necessity,” Jepson explains.

The EEOC has embedded this theory in its rules, guidance, and enforcement materials for decades.

The article examines a June 9, 2026, memorandum from the DOJ Office of Legal Counsel. The memorandum concludes that the EEOC’s approach to disparate-impact liability is unconstitutional because it bases liability solely on statistical disparity rather than evidence of intentional discrimination. To address this, the memorandum outlines three limiting principles for courts to apply and argues that the EEOC’s validation-study requirement exceeds the statutory business-necessity defense.

The three limiting principles are:

• Businesses need plenty of room to defend themselves by explaining the real, valid reasons behind their policies. The memorandum notes they can use job-performance tests, as long as the tests are a reasonable way to reach a legitimate goal.
• The burden is on the plaintiffs to point out the exact hiring or workplace practice they are challenging, and they must show plausible facts proving that this specific practice caused the unfair impact.
• Plaintiffs have to propose a better alternative. They must prove that their suggested option would lessen the unfair impact while working just as well for the company.

The article notes that the memorandum is advisory only and does not amend Title VII or overturn existing precedent.

For lawyers advising employers, enforcement trends and enterprise risk management are the primary concerns. Although current legal obligations remain unchanged, the administration’s posture signals reduced federal pursuit of disparate-impact claims.

Compliance programs and hiring practices should nonetheless be reviewed, as private litigation under Title VII continues unaffected. Counsel should monitor whether courts begin adopting the memorandum’s limiting principles in pending and future disputes.