by Selena Hill
June 14, 2026
Civil righs advocates warn the move could make it harder for Black and marginalized workers to challenge discriminatory hiring, promotion, and workplace policies.
The U.S. Department of Justice has issued a sweeping legal opinion declaring the Equal Employment Opportunity Commission’s longstanding interpretation of disparate-impact discrimination under Title VII of the Civil Rights Act unconstitutional, drawing sharp criticism from civil rights advocates who warn that the move could harm Black workers and other marginalized groups.
The opinion argues that disparate-impact — a legal theory of discrimination that holds employers accountable for practices that disproportionately harm protected groups based on race, ethnicity, or gender — improperly pressures employers to consider race when hiring.
“The fundamental problem is that disparate-impact liability tends to incent — and even coerce — employers to make race-based decisions to avoid liability or the threat of liability,” reads the opinion, which was signed by Office of Legal Counsel Assistant Attorney General T. Elliot Gaiser and Deputy Assistant Attorney General Joshua Craddock, according to CBS News.
For decades, disparate-impact claims have allowed workers to challenge seemingly neutral workplace policies, including hiring tests, criminal background checks, promotion standards, and other employment practices, that disproportionately exclude protected groups, even when discriminatory intent cannot be proven. The Justice Department, however, said employers should be able to use such tools “without fear” of discrimination claims based solely on their effect on different demographic groups.
Acting Attorney General Todd Blanche, who previously worked as President Trump’s personal defense lawyer, applauded the opinion, arguing that the EEOC’s interpretation of Title VII has produced unintended consequences.
“Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address,” Blanche said. “This opinion will now allow businesses to hire based on performance, restoring equal opportunities in the American workplace.”
EEOC Chair Andrea Lucas also welcomed the finding. In a statement provided by the DOJ, Lucas said, “We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters,” reports Reuters.
Civil rights advocates, however, say the opinion threatens an important legal mechanism for combating systemic discrimination.
“For over 50 years, the EEOC has relied on disparate impact to address some of the most troubling and egregious civil rights violations,” said Johnathan Smith, former deputy assistant attorney general in the Civil Rights Division and current managing director at the National Center for Youth Law, to CBS News. “Disparate impact is a vital tool in rooting out patterns of discrimination and unlawful conduct.”
Smith added that “courts, including the Supreme Court, have long recognized the lawfulness of disparate impact and the important role it plays in ensuring equal opportunity.”
Stacey Young, a former Civil Rights Division attorney and founder of Justice Connection, argued that discrimination often exists without overt expressions of bias.
“Discriminatory outcomes don’t always result from explicit animus, which is why disparate impact liability has been a cornerstone of civil rights enforcement for decades,” Young said. “Requiring plaintiffs in all civil rights cases to demonstrate discriminatory intent is contrary to Supreme Court law, and will lead to a sharp increase in unchecked discrimination.”
Regan Rush, the director of Red Line for Civil Rights at Democracy Forward, said the DOJ’s position ignores the realities of modern discrimination.
“The OLC opinion treats discrimination as if it only exists when someone openly admits to it,” Rush said. “But discrimination is not always overt, and Congress knew that when it explicitly wrote disparate impact into Title VII in 1991.”
Rush went on to describe the opinion as “the latest attempt by the Trump administration to narrow civil rights protections, particularly for people of color, across the board—from voting to housing and now to employment.”
While the opinion does not overturn federal law, advocates fear it signals a major shift in how workplace discrimination claims will be investigated and enforced, potentially making it more difficult for Black workers to challenge policies that produce unequal outcomes, even when those disparities are clear.
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