Disparate Impact Law

Mainstream coverage over the past week reported that the Justice Department’s Office of Legal Counsel issued a June 9, 2026 opinion declaring disparate‑impact liability under Title VII unconstitutional, saying EEOC guidance coerced race‑based employment decisions and that employers may use aptitude tests, criminal background checks and similar tools without facing claims based only on statistical disparities. Reports tied the opinion to prior moves by the administration (Executive Order 14281 on April 23, 2025 and a December 9, 2025 DOJ rule rescinding parts of Title VI disparate‑impact enforcement) and noted statements of support from Acting Attorney General Todd Blanche and EEOC Chair Andrea Lucas.

What mainstream reports largely left out were deeper legal and factual contexts: the history that disparate‑impact liability traces to Griggs v. Duke Power Co. (1971) and was codified in the Civil Rights Act of 1991, and recent enforcement volumes (EEOC received 88,531 new charges in FY2024, a 9.2% increase, with most under Title VII). There were few independent analyses or perspectives from civil‑rights groups, legal scholars, employers, or workers on practical consequences, and missing empirical evidence on how rescinding disparate‑impact enforcement would affect hiring, criminal‑background‑check outcomes, or workplace equity. Alternative sources and social commentary that did emerge framed the opinion both as an “earthquake” for civil‑rights law and as a move toward a color‑blind standard, but no sustained contrarian legal arguments or in‑depth opinion pieces were identified in the coverage reviewed.