On June 9, 2026, the U.S. Department of Justice (DOJ) issued a significant legal opinion concluding that the Equal Employment Opportunity Commission’s (EEOC) longstanding interpretation of Title VII disparate impact liability is unconstitutional. The opinion questions aspects of the Uniform Guidelines on Employee Selection Procedures (UGESP), the federal framework that has guided employers’ validation of employment tests and selection procedures for nearly 50 years.
While the DOJ opinion does not change Title VII itself and is not binding on federal courts, it signals a potentially significant shift in federal enforcement priorities and creates new uncertainty for employers. For HR, compliance, legal, and talent acquisition professionals, the key question is straightforward: Should employers change how they evaluate seemingly neutral employment practices, including tests and other selection procedures? At least for now, the answer is generally no.
Under Title VII of the Civil Rights Act of 1964, employers may be liable for discrimination under two different theories:
The disparate impact doctrine has been a cornerstone of employment law since the Supreme Court's 1971 unanimous 8-0 decision in Griggs v. Duke Power Co. and was later codified by Congress in the Civil Rights Act (CRA) of 1991. In particular, the 1991 CRA amended Title VII to expressly include a three-step burden shifting framework for disparate impact claims. Under that framework, a plaintiff must first identify a specific employment practice that causes a statistically significant adverse effect on a protected group. The burden then shifts to the employer to prove the practice is job related and consistent with business necessity. If the employer succeeds in doing so, the burden shifts back to the plaintiff to identify an equally valid, less adverse alternative practice that the employer refused to adopt.
To help employers evaluate whether tests and selection procedures are job-related and defensible, the EEOC and other federal agencies adopted the Uniform Guidelines on Employee Selection Procedures (UGESP) in 1978. UGESP outlines accepted approaches for validating employment selection procedures that have an adverse impact on any race, sex, or ethnic group, including:
The guidelines were built upon court decisions, agency experience, and the standards the industrial/organizational psychological profession uses to develop and evaluate selection tools that are job-related. For decades, employers have relied on these guidelines when implementing cognitive tests, personality assessments, physical ability tests, structured interviews, work samples, promotional procedures, and other employment selection tools.
The DOJ opinion was requested by EEOC Chair Andrea Lucas as part of EEOC’s implementation of Executive Order 14281, which instructed all federal agencies to de-prioritize disparate impact enforcement.
In response to Chair Lucas’ request, the DOJ’s Office of Legal Counsel opined that the EEOC’s guidelines on disparate impact place too much emphasis on statistical disparities in outcomes by race, sex and ethnicity and insufficient emphasis on discriminatory intent. According to the opinion, EEOC’s guidelines on disparate impact liability can “pressure employers to engage in race-based decision making” in an effort to avoid legal exposure. The DOJ argues that such an approach raises constitutional concerns and is inconsistent with the proper interpretation of Title VII, which should focus on “intentional discrimination.”
The opinion further suggests that portions of the EEOC’s disparate impact framework, including aspects of UGESP and validation requirements, may exceed what Title VII lawfully requires. According to the opinion, businesses can use hiring practices that are generally related to job performance, including 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 demographic groups. To justify using such tools, the opinion asserts, employers need to show only that the practice is “rational, convenient, or helpful for serving a valid business purpose,” which seems to be a different standard than what Congress codified in the 1991 CRA.
The opinion also outlines the DOJ’s views on the steps plaintiffs must take to bring a disparate impact claim:
(1) Show the specific hiring practice directly caused the unequal outcomes being challenged; and
(2) Identify another approach that would be equally effective for employers but would result in fewer unequal outcomes.
Importantly, the opinion does not overturn Griggs or repeal the statutory provision in Title VII and the 1991 CRA codifying disparate impact. Only Congress or the courts can make those changes. The opinion also does not rescind UGESP. However, because Office of Legal Counsel opinions generally guide executive branch agencies, employers may see future revisions to EEOC guidance, enforcement priorities, and technical assistance materials.
Some employers are asking whether this development means disparate impact analyses and validation studies are no longer needed. Not necessarily.
Although the DOJ opinion signals a shift in federal enforcement philosophy, several important realities remain:
(1) Title VII Still Exists: Congress expressly incorporated disparate impact principles into Title VII through the 1991 CRA. Until federal courts rule otherwise or Congress amends the statute, disparate impact claims remain available under federal law. Employers may continue to face private litigation based on a disparate impact theory regardless of changes in EEOC enforcement priorities.
(2) State Laws May Continue to Apply: Many state and local anti-discrimination laws recognize disparate impact theories or rely on analytical frameworks similar to federal law. Even if federal agency enforcement changes, employers operating across multiple jurisdictions may still face scrutiny regarding selection procedures that disproportionately affect protected groups.
(3) Plaintiffs' Attorneys Will Continue Bringing Claims: Private litigation does not disappear simply because an enforcement agency changes course. Employers should expect plaintiffs' attorneys to continue challenging selection procedures that produce statistically significant adverse impact, particularly where validation evidence is weak or outdated.
(4) Business Necessity Still Matters: The DOJ opinion itself acknowledges that employers still must be able to demonstrate legitimate business reasons for selection procedures and other neutral rules that have a disparate impact. In practice, the strongest way to demonstrate business necessity remains the same approach employers have used for decades: conducting job analyses, documenting job requirements, and validating selection procedures against those requirements.
One of the more notable aspects of the DOJ opinion is its criticism of portions of UGESP.
Some commentators have interpreted the opinion as signaling a potential effort to revise or rescind parts of the Guidelines. Whether that ultimately occurs remains uncertain.
For now, however, UGESP remains the most widely recognized and professionally accepted framework for validating employee selection procedures. It continues to be referenced by courts, practitioners, industrial/organizational (I/O) psychologists, and employers across industries. There is significant overlap between the validation strategies identified in the UGESP and those outlined in the Principles for the Validation and use of Personnel Selection Procedures (2018) published by the American Psychological Association (APA) and the Society for Industrial/Organizational Psychology (SIOP). Even if UGESP is eliminated, the core methods and strategies of personnel selection procedure validation utilized by expert I/O psychologists are likely to remain unchanged.
Employers should be cautious about assuming the guidance outlined in UGESP is no longer relevant simply because aspects of it have been questioned by the DOJ.
Regardless of future legal developments, validation remains one of the most effective tools available to employers seeking to implement sound selection decision processes.
A well-designed validation study helps answer fundamental questions:
These questions are important not only for legal defensibility but also for improving talent decisions and workforce outcomes. In other words, validation helps employers identify selection procedures that are not only fair but, even more importantly, also effective. Properly developed and validated selection tools increase the success of hiring people who have the necessary knowledge, skills, abilities, and competencies needed for success in the role. Validated tools also reduce costs associated with turnover and with hiring the wrong candidate. Finally, validation also provides documentation that may be valuable in responding to legal challenges, audits, employee concerns, or regulatory inquiries.
Given the uncertainty surrounding future enforcement, employers should resist the temptation to make abrupt changes. Instead, organizations should consider:
Reviewing current selection procedures: Understand which assessments, interviews, screening tools, and decision rules are being used throughout the organization, including those that rely on artificial intelligence.
Evaluating existing validation evidence: Determine whether validation studies are current, job-specific, and adequately documented.
Continuing data-driven monitoring practices: Even if enforcement priorities shift, understanding selection outcomes remains a valuable business and compliance practice.
Documenting business necessity: Ensure that selection procedures can be tied directly to legitimate job requirements and organizational objectives.
Staying informed: Additional guidance from the EEOC, DOJ, federal courts, and Congress may emerge. Employers should carefully follow developments in this area.
The DOJ opinion outlines a shift in how federal agencies may approach employment discrimination enforcement under the current administration. At the same time, the legal foundations of disparate impact liability have not disappeared. Title VII remains in effect, courts continue to recognize disparate impact claims, and employers remain responsible for ensuring that their selection procedures are job-related and consistent with business necessity.
For employers, the takeaway is not that validation and statistical analyses of employment data are obsolete. Rather, it is that the evolving legal and regulatory landscape makes it even more important to understand the strengths, limitations, and business justification for employment selection procedures, including those that rely on artificial intelligence. As organizations navigate this changing environment, data-driven efforts to show job-relatedness, including through workforce analytics and validation of selection procedures by a trained professional, remain a critical tool for supporting effective and defensible talent decisions.