New DOJ Guidance Finds EEOC’s Previous Unintentional Bias Guidance Unconstitutional

In a Department of Justice (DOJ) Memo issued on June 9, 2026, the DOJ has re-evaluated the Equal Employment Opportunity Commission’s (EEOC) enforcement guidelines under Title VII of the 1964 Civil Rights Act, as they pertain to the disparate impact theory of discrimination.  This theory basically states that neutral employment policies applied to all employees can be illegal if they have a discriminatory effect on a protected class, regardless of the lawful intent of the policies.  The Memo sets forth why the Uniform Guidelines on Employee Selection Procedures and Affirmative Action Guidelines appear to be unlawful.  DOJ interprets these Guidelines as a form of racial-proportionality mandate which encourages employers to engage in race-based decision making to avoid liability.  The DOJ finds such an approach unconstitutional and unlawful.  

The DOJ advocates that the 1971 Griggs v. Duke Power Co. decision has been modified by the more recent Supreme Court ruling in Louisiana v. Callais, which narrowed the Voting Rights Act by adopting a stricter standard challenging voting zones as racially discriminatory.  

Editor’s Note: It should be noted that the Supreme Court ruling in Griggs v. Duke Power was essentially codified through law in the 1991 Amendment to Title VII.  Therefore, this statute currently remains applicable law unless and until overturned by the courts. 

This article is part of our September 2026 Newsletter. 

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