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.