On June 9, 2026, the Department of Justice’s Office of Legal Counsel (OLC) released a memo attacking the constitutionality of the disparate impact framework in Title VII of the 1964 Civil Rights Act, which prohibits employment discrimination. The memo represents a significant departure from decades of federal civil rights enforcement and from Congress’s bipartisan decision in 1991 to expressly include disparate impact liability in Title VII.

Under the statute itself and current Supreme Court case law, disparate impact remains a valid legal theory under Title VII and this memo does not and cannot change that. Rather, it announces the executive branch’s interpretation of Title VII’s disparate impact framework. This interpretation is binding on the executive branch, with special relevance for DOJ and the Equal Employment Opportunity Commission (EEOC). It signals that both agencies will likely press this reading in pending private litigation—and, potentially, look for a vehicle to take the issue to the Supreme Court.

The memo is part of a broader effort by the Trump administration to narrow the scope of federal civil rights protections to intentional discrimination. If adopted by courts, this view would eliminate the nation’s most important legal tool for addressing systemic barriers to equal opportunity in employment, particularly for women and communities of color.

The Memo Justifies Decisions Already Made

The EEOC under the Trump administration abandoned disparate impact enforcement well before the OLC memo, but the memo has a direct effect on EEOC’s guidance.

Issued in response to a request from EEOC Chair Andrea Lucas, the memo concludes that two specific, decades-old EEOC guidance documents embrace positions that are unconstitutional: the Uniform Guidelines on Employee Selection Procedures’ validation study requirements, and EEOC’s Affirmative Action Guidelines authorizing race-conscious remedial action.

OLC memos only bind the executive branch and do not amend statutes, overrule Supreme Court precedent, or bind federal courts, and the disparate impact framework Congress codified in 1991 remains the law unless and until Congress or the courts say otherwise. Employers who treat the memo as a green light miscalculate their exposure, since private plaintiffs can still bring disparate impact claims.

The memo’s longer-term significance lies in its attempt to shape future litigation and employer behavior away from a statutory framework that Congress deliberately and expressly enacted, as set out below.

Congress Wrote Disparate Impact Into Title VII

Disparate impact liability exists because discrimination is not always overt. In 1971, the Supreme Court recognized that Title VII “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.”

Although courts had long recognized disparate impact liability under Title VII, in 1991, Congress expressly codified disparate impact liability into the statute. It created a detailed evidentiary framework for disparate impact that balances the goal of rooting out unnecessary barriers to equal opportunity with the legitimate operational needs of employers.

To prove a disparate impact claim under Title VII, a plaintiff must first demonstrate that the challenged employment practice causes a disparate impact on the basis of race, color, religion, sex, or national origin. Even when a plaintiff satisfies that burden, Congress afforded employers a significant defense. The employer may prevail by demonstrating that the challenged practice is “job related for the position in question and consistent with business necessity.” If the employer demonstrates those requirements, plaintiffs have only one potential avenue left: demonstrating the existence of an alternative employment practice that would serve the employer’s legitimate needs with less disparate impact and that the employer has refused to adopt.

Title VII also addresses race-conscious decision making directly. Employers may not “adjust the scores of, use different cutoff scores for, or otherwise alter the results of” employment tests “on the basis of race, color, religion, sex, or national origin.” The statute thus rejects the notion that disparate impact liability authorizes race-based manipulation of employment outcomes, including quotas. Such actions constitute intentional discrimination.

Congress’s allocation of evidentiary burdens was deliberate. Two years before the 1991 Act, in Wards Cove Packing Co. v. Atonio, the Supreme Court had reworked the disparate impact framework in the employer’s favor. Congress responded by writing disparate impact liability into the text of Title VII and assigning the employer the burden of demonstrating job relatedness and business necessity.

Rather than grappling with Congress’s specific allocation of burdens, OLC seeks to substantially narrow disparate impact liability through constitutional reinterpretation.

Tellingly, the memo cites no majority opinion—from the Supreme Court or any lower court—actually holding disparate impact liability unconstitutional. The memo’s argument principally rests on a single concurrence Justice Scalia wrote alone in 2009.

OLC Would Restore the Standard Congress Rejected

DOJ’s Office of Legal Counsel contends that disparate impact liability is not an independent theory of discrimination. Rather, OLC posits that it is solely a tool for identifying practices that create a strong inference of intentional discrimination.

OLC would also lower the employer’s burden by treating virtually any employment practice with a plausible business rationale as satisfying the business necessity defense. It goes further still, treating entire categories of practices—tests chief among them—as presumptively valid regardless of the actual evidence in a given case. This approach directly conflicts with Title VII itself and decades of controlling and undisturbed case law. And it would raise the evidentiary bar for employees, requiring specific evidence that an alternative practice is not just less discriminatory but equally effective—including with respect to cost and administrative burden. In substance, OLC urges returning to the standard Congress rejected in 1991.

Former EEOC and DOJ officials writing as EEO Leaders have cataloged the memo’s legal defects in detail.

Disparate Impact Promotes Merit-Based Hiring By Removing Unfair Barriers

The Trump administration often repeats the false claim that it is “restoring merit” by attacking Title VII’s disparate impact liability. But disparate impact liability promotes merit-based hiring and other employment practices by removing unfair barriers that are unrelated to merit.

For example, a 2024 DOJ investigation found that the City of Durham used a written test for entry-level firefighters that had no meaningful relation to determining who could and could not perform as a firefighter and disqualified Black applicants at disproportionately high rates. A test can appear neutral while measuring nothing job-related—appararent objectivity is not a substitute for proof of job-relatedness. Replacing the flawed test with a validated, job-related exam would have eliminated that discriminatory barrier while identifying who could actually do the job. That is by definition merit-based hiring. The Trump administration abandoned the settlement it had reached with Durham, and the city announced it will no longer pay nearly $1 million in back pay to the impacted job applicants.

The Trump Administration Is Targeting Disparate Impact Across Civil Rights Laws

Title VII is not the only law where disparate impact is under attack. Project 2025 called for the elimination of disparate impact liability, and the Trump administration has answered that call across civil rights statutes. In April 2025, President Trump signed Executive Order 14281, declaring it the policy of the United States “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”

The Trump administration has pursued this rollback on multiple fronts. It rescinded longstanding Title VI disparate impact regulations governing recipients of federal funds. In April 2026, it issued a regulation asserting that the Equal Credit Opportunity Act does not encompass disparate impact liability.

DOJ also urged the Supreme Court to adopt a substantially more restrictive interpretation of Section 2 of the Voting Rights Act’s discriminatory results test in Louisiana v. Callais, limiting its reach to intentional discrimination.

Taken together, these actions reflect a sustained effort to eliminate disparate impact as a legal tool across the board and confine civil rights enforcement to cases of proven intentional discrimination.