US federal: DOJ concludes disparate-impact liability guidelines under Title VII are unconstitutional

At a glance

• A new Department of Justice (DOJ) memorandum concludes that disparate-impact liability guidelines under Title VII are unconstitutional.
• The memorandum is not binding and cannot shield employers from liability.

On June 9, 2026, the DOJ released a memorandum stating that the EEOC’s disparate-impact liability guidelines under Title VII of the Civil Rights Act of 1964 are unconstitutional. The DOJ reasoned that disparate-impact liability overemphasizes protected traits at the outset of employment decisions. The memorandum is consistent with recent federal efforts to limit the use of disparate impact.

However, the memorandum is not legally binding and cannot shield employers from private litigation or state-level disparate impact enforcement actions. It also does not prohibit statistical monitoring of criminal background checks, aptitude tests, and other employment selection tools.