A new Justice Department memo was issued 6/9/26, finding the prior EEOC Guidance on unintentional workplace bias illegal and constitutionally inappropriate, and finding disparate impact liability under Title VII of the 1964 Civil Rights Act unconstitutional. In the disparate impact theory, an employer can be liable for discrimination even under a neutral policy if it lacks a legitimate business justification and the policy disproportionately impacts a protected class, regardless of intent. The Department of Justice (DOJ) opinion believes that the disparate impact guidance violates the Equal Protection Clause and may serve as a challenge in the future of the U.S. Supreme Court ruling in the 1971 Griggs v. Duke Power decision, which established the doctrine before it was later codified into Title VII.
The new opinion supports recent rulings that the Constitution is “color blind,” suggesting that Title VII requires equal treatment, not equal outcomes. It can be argued from the new opinion that an employer using various types of employment tests and background screenings need only cite a business reason for their validity, and that statistical disparities alone are insufficient to prove a violation. On 6/30/26, the U.S. Equal Employment Opportunity Commission (the EEOC) announced that it had rescinded longstanding guidance relating to voluntary affirmative action plans. The now-defunct guidance includes a 1979 interpretive rule called “Affirmative Action Appropriate Under Title VII of the Civil Rights Act of 1964,” which outlined how employers can voluntarily implement affirmative action plans. The EEOC also eliminated a section of its Compliance Manual, Section 607, that discusses affirmative action.
On 6/25/26, the U.S. Department of Veterans’ Affairs (VA) issued a proposed rule to amend regulations implementing Title VI of the Civil Rights Act of 1964, to eliminate disparate impact liability and prohibit only intentional discrimination. The rule will remove text prohibiting federal funding recipients from using criteria that “have the effect of subjecting individuals to discrimination. . .” It would also rescind a provision concerning the use of “affirmative action.” The VA said that there are “serious and Constitutional concerns with the legality” of the current regulations, that go beyond the scope of Title VI’s explicit bar on intentional discrimination by prohibiting facially neutral policies that have an unintentional disparate impact. The VA cites the Supreme Court’s 2001 ruling in Alexander v. Sandoval, that Title VI only bars intentional discrimination and permits facially neutral policies that result in disparate outcomes when there is no discriminatory intent. The U.S. Department of Transportation (DOT) similarly finalized a rule eliminating disparate impact liability from its Title VI - Implementing Regulations on 6/10/26.
This article is part of our August 2026 Newsletter.
View the newsletter online
Download the newsletter as a PDF
