In naming its new National Enforcement Plan for fiscal years 2025–2029 on June 4, 2026, one of the priorities of the Equal Employment Opportunity Commission (“EEOC”) is disparate treatment (intentional discrimination) over disparate impact claims (where a seemingly neutral policy or practice has a disproportionate impact on particular individuals based on a protected characteristic). Prior to the named priorities, the EEOC had already stopped enforcing claims based on disparate impact.

Shortly after the National Enforcement Plan was unveiled, on June 9, 2026, the U.S. Department of Justice (“DOJ”) Office of Legal Counsel issued an opinion letter to the EEOC that the EEOC’s guidelines regarding disparate impact liability under Title VII of the Civil Rights Act of 1964 (“Title VII”) were unconstitutional. Under previous guidelines, employers could be held liable under a claim of disparate impact for unequal hiring and promotion outcomes among groups of individuals, without regard to the employer’s likely intent.

What Does the DOJ’s Opinion Letter State?

The opinion letter stated that the previous guidelines pressured employers into making employment decisions for individuals based on protected characteristics such as race or sex to avoid liability or a threat of liability.

Claims of disparate impact can arise commonly regarding pre-employment tests or other information. The DOJ stated that businesses can use hiring practices that are generally related to job performance, providing examples such as aptitude tests, knowledge-based tests, criminal-background checks, and SAT scores, without fear of violating Title VII simply because such practices may result in different outcomes for different groups of individuals. Employers only need to show that the policy or practice is reasonable, useful, or helps serve a valid business purpose to justify using these.

The DOJ’s opinion letter also stated that individuals bringing a disparate impact claim must meet two requirements going forward: (1) they must show that the specific hiring practice directly caused the unequal outcomes they are challenging; and (2) they must identify another approach that would be equally effective for employers but would result in fewer unequal outcomes.

What Do Employers Need to Know?

At the outset, it is important to note that the DOJ’s June 9, 2026, opinion letter is neither a judicial decision nor a legislative change, and it is binding only on the EEOC, which asked for the opinion. Disparate impact is still a viable claim against employers under federal law and under many state laws, including Minnesota and Wisconsin.

However, it is still important for employers to understand the EEOC’s priorities and goals now in place until fiscal year 2026. Given the EEOC’s direction, it is also possible that there may be a potential increase in disparate impact claims brought in state and federal courts by employees, as well as by state agencies that enforce disparate impact liability.

Updates to federal and state law may be difficult or complex to sort through and apply to your employees. Employers should review their policies, including their employee handbook, and procedures to make sure that they are in compliance with current laws and make any adjustments as necessary.

If you have questions about these developments or your company policies, please contact our Labor & Employment attorneys at (651) 439-2878.