by Selena Hill
June 14, 2026
Civil rights advocates warn that 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 activists 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 — unfairly pressures employers to consider race in hiring.
“The fundamental problem is that disparate impact liability tends to entice — and even compel — employers to make race-based decisions to avoid liability or the threat of liability,” said 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 lawsuits have allowed workers to challenge seemingly neutral workplace policies, including pre-employment tests, criminal background checks, promotion standards, and other employment practices that disproportionately exclude protected groups, even when discriminatory intent cannot be proven. But the Justice Department said employers should be able to use such tools “without fear” of discrimination lawsuits based solely on their impact on different demographic groups.
Acting Attorney General Todd Blanche, who previously served as President Trump’s personal defense attorney, welcomed the opinion and argued that the EEOC’s interpretation of Title VII had created unintended consequences.
“Although the EEOC seeks to promote equality, Title VII’s differing interpretation of consequential liability actually promotes the very discrimination its policies are intended to address,” Blanche said. “This opinion will now allow companies to hire performance-focused employees and restore equal opportunity to the American workplace.”
EEOC Chairwoman Andrea Lucas also welcomed the finding. In a DOJ statement, Lucas said: “We believe this opinion will provide clarity on the constitutional limits of disparate impact in employment discrimination matters,” Reuters reports.
But civil rights advocates say the opinion threatens an important legal mechanism to combat 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,” Johnathan Smith, former deputy assistant attorney general in the Civil Rights Division and current executive director of the National Center for Youth Law, told CBS News. “Disparate Impact is an important tool to eradicate patterns of discrimination and unlawful behavior.”
Smith added that “courts, including the Supreme Court, have long recognized the legality 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 occurs without overt bias.
“Discriminatory outcomes do not always result from explicit hostility, 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 prove discriminatory intent violates Supreme Court law and will lead to a sharp increase in unchecked discrimination.”
Regan Rush, director of the 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 if someone openly admits it,” Rush said. “But discrimination is not always obvious, and Congress knew that when it explicitly wrote disparate impact into Title VII in 1991.”
Rush further described the statement as “the Trump administration’s latest attempt to restrict civil rights protections, particularly for people of color, across the board – from voting rights to housing to employment.”
Although the opinion does not overturn federal law, advocates fear it signals a major shift in the way workplace discrimination claims are investigated and enforced, which would potentially make it more difficult for Black workers to challenge policies that produce unequal outcomes, even when those disparities are obvious.
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