DOJ OLC opinion questions constitutionality of EEOC disparate impact interpretations; claims remain viable

Short summary

A DOJ Office of Legal Counsel opinion found the EEOC's historical interpretations of Title VII disparate impact liability unconstitutional, but disparate impact remains a viable legal claim under federal and state law. The EEOC's new National Enforcement Plan prioritizes disparate treatment over disparate impact claims. Commissioner Kotagal warned that reduced disparate impact enforcement is especially concerning given rising use of AI tools in employment decisions that may carry inherent biases.

• •DOJ OLC opinion declared EEOC's disparate impact interpretations unconstitutional but did not eliminate disparate impact as a legal theory
• •EEOC's new enforcement plan prioritizes intentional disparate treatment claims over disparate impact
• •EEOC Commissioner flagged AI hiring tools as a key concern if disparate impact enforcement wanes

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