The Department of Justice just issued a legal opinion claiming that disparate impact liability is unconstitutional because it supposedly "incent[s] — and even coerce[s] — employers to make race-based decisions to avoid liability."

That's a remarkable claim.

It's also a fundamental misunderstanding of how disparate impact law actually works.

Disparate impact claims exist precisely because they target facially neutral policies. No one is alleging intentional discrimination. No one is claiming that an employer adopted a policy because of race, sex, or some other protected characteristic.

The entire point of disparate impact is that a neutral rule can nonetheless operate as an unnecessary barrier to employment opportunities.

In fact, that's exactly why the Supreme Court recognized disparate impact liability in Griggs v. Duke Power Co. in 1971. The employer in Griggs required a high school diploma and certain aptitude test scores for transfers and promotions. The policies were facially neutral. They said nothing about race. Yet they disproportionately excluded Black employees and bore little relationship to successful job performance. The Supreme Court held that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." The Court's point was simple: employment criteria should measure a person's ability to perform a job, not create arbitrary barriers that disproportionately exclude protected groups.

Think aptitude tests. Physical fitness standards. Educational requirements. Criminal background checks. Credit checks. Hiring algorithms. AI screening tools.

None of these practices are discriminatory on their face. Yet all have the potential to disproportionately exclude certain protected groups.

Title VII's disparate impact framework asks a simple question: Does the employer have a legitimate business reason for using the practice?

If the answer is yes, the employer wins.

That's the part DOJ's opinion conveniently ignores.

Disparate impact liability does not require employers to adopt quotas. It does not require race-based hiring. It does not require preferential treatment.

It requires employers to justify employment practices that disproportionately exclude protected groups.

That's it.

An employer that uses a criminal background check because it is job-related and consistent with business necessity has a defense. An employer that uses a validated aptitude test tied to actual job performance has a defense. An employer that can demonstrate a legitimate need for a particular hiring criterion has a defense.

The law does not say, "You must hire more people from Group X."

The law says, "If your policy disproportionately screens out Group X, explain why the policy is necessary."

Those are very different things.

What's especially strange about DOJ's position is that it essentially assumes employers will engage in intentional discrimination to avoid being accused of unintentional discrimination.

That logic makes no sense.

If an employer responds to disparate impact concerns by making race-based employment decisions, that employer has created an entirely different legal problem. Title VII already prohibits intentional discrimination.

The cure for a potentially problematic employment practice is not race-conscious decision-making. The cure is validating the practice, modifying it, or eliminating it if it lacks a sufficient business justification.

The practical implications of this position could be enormous.

Consider criminal background checks.

For years, employers have been advised to carefully tailor criminal history screens to the requirements of specific jobs because broad exclusions can disproportionately affect certain racial groups. Employers have been encouraged to consider the nature of the offense, the time elapsed since conviction, and the relationship between the offense and the job.

Under DOJ's new theory, those concerns could largely disappear.

The same would be true for educational requirements that aren't actually necessary for job performance. Aptitude tests that have never been validated. Physical requirements that exceed what the job actually demands. AI hiring tools that systematically exclude qualified candidates.

Ironically, many of these are the very types of employment criteria that gave rise to disparate impact liability in Griggs more than five decades ago.

The question would no longer be whether these practices create unnecessary barriers to employment.

The question would be whether someone can prove intentional discrimination.

That's a much higher hurdle.

And that's exactly why disparate impact has been a cornerstone of civil rights enforcement for more than half a century.

Discrimination doesn't always announce itself with a racist memo or a smoking-gun email. Sometimes it appears through systems, policies, and practices that produce exclusionary outcomes despite facial neutrality.

That's why Congress codified Griggs' disparate-impact framework in the Civil Rights Act of 1991. That's why the Supreme Court has repeatedly recognized it. And that's why the EEOC has spent decades enforcing it.

The DOJ's opinion may signal the administration's enforcement priorities. It may embolden employers to challenge disparate impact claims. It may even preview future litigation aimed at persuading courts to revisit longstanding precedent.

But that would require overturning more than fifty years of settled law dating back to Griggs v. Duke Power.

Let's not pretend that disparate impact liability somehow forces employers to engage in intentional discrimination. The doctrine exists because facially neutral employment practices can sometimes function as unnecessary barriers to equal employment opportunity. That's not a bug in Title VII. It's one of the statute's core features.

Eliminating disparate impact liability would not create a more merit-based workplace.

It would simply make it harder to challenge employment barriers that disproportionately exclude protected groups while serving little or no legitimate business purpose.

If your ADA accommodation policy starts with "take unpaid leave," you're doing it wrong.

Just ask the 15 Dunkin' Donuts franchisees that recently agreed to pay $250,000 to settle an EEOC disability discrimination lawsuit.

According to the EEOC, these franchisees maintained a policy that refused to provide reasonable accommodations to employees with medical restrictions. Instead, workers were placed on unpaid, indefinite leave until they could return to work with no restrictions whatsoever. In other words, if an employee wasn't "100% healed," they weren't working.

The EEOC calls this a "100%-healed" policy. The ADA calls it unlawful.

The EEOC has replaced its 2024-2028 Strategic Enforcement Plan with a new National Enforcement Plan for 2025-2029. The change is more than cosmetic. It reflects a significant shift in what the agency believes its mission should be.

To be clear, intentional discrimination against anyone because of race, sex, religion, national origin, age, disability, or any other protected characteristic is unlawful. Full stop. Title VII protects everyone. An employer cannot justify discrimination simply because it occurs in the name of diversity, equity, or inclusion.

But that's not really the story here.

The story is what the EEOC has chosen to prioritize.

The agency's stated Chair Priorities now include "remedying DEI-related race and sex discrimination," "protecting American workers from anti-American national origin discrimination," "defending women's rights to single-sex spaces at work and workers' rights to express the binary nature of sex," and protecting religious liberty and religious accommodations. The plan also repeatedly identifies DEI programs, hiring initiatives, and workplace diversity practices as enforcement targets.

None of these issues fall outside the EEOC's jurisdiction. If an employer intentionally discriminates based on race, sex, religion, or national origin, the agency should investigate. The question is whether elevating these issues to the agency's highest enforcement priorities reflects a neutral assessment of workplace discrimination or a political response to the culture-war issues dominating today's headlines.

The most revealing sentence in the entire document may be the one few employers will notice. The EEOC expressly states that it will use its enforcement authority "to advance the Administration's policy objectives."

That's an astonishing admission. The EEOC was not created to advance presidential policy objectives. It was created to enforce federal anti-discrimination laws. Those are not always the same thing.

Every administration leaves its fingerprints on federal agencies. That's politics. But this plan reads less like a neutral enforcement roadmap and more like a political document designed to reassure the White House that the agency is aligned with its culture-war priorities.

For most of its history, the EEOC has focused its resources on combating discrimination that has historically excluded and marginalized workers from equal employment opportunity. This plan does not abandon that mission outright. But it unmistakably shifts the agency's attention toward issues that have become central to the current Administration's political agenda.

An EEOC focused on rooting out discrimination wherever it exists is fulfilling its statutory mission. An EEOC focused on advancing the political objectives of its boss is something very different.

What should employers do? Don't overreact, but don't ignore the signal. Review DEI initiatives for legal compliance. Ensure accommodation processes work effectively for both disability and religious requests. Revisit policies addressing sex-segregated facilities, pronoun usage, and employee expression. Most importantly, continue making employment decisions based on qualifications, performance, and business needs—not politics.

Administrations change. Enforcement priorities change. The law changes more slowly. Smart employers should keep their focus there.

The World Cup kicks off on June 11, and plenty of matches will be played during the workday. (June 17, I'm looking at you. Portugal vs. DR Congo starts at 1 p.m. ET, followed by England vs. Croatia just three hours later.)

Ohio's new AI Ethics Guide for Lawyers is worth reading.

"[O]nly AI tools offered with adequate security measures and other confidentiality safeguards should be used when client-related information is disclosed (or information possibly leading to the identity of a client)."

"Regardless of the AI tool utilized, lawyers should always anonymize client information and refrain from inputting details that could lead to the discovery of the client's identity."

A helpful tip on the FLSA's tip credit 🎶 With my mind on my Title VII and Title VII on my mind. 🎶 The one mistake I keep seeing employers make, over and over again WIRTW #799: the 'inclusion' edition Can you harass someone for being American?