The U.S. Department of Justice’s Office of Legal Counsel issued, on June 9, 2026, a formal opinion concluding that the way the EEOC (Equal Employment Opportunity Commission) has applied disparate impact liability goes beyond constitutional limits.
Disparate impact refers to hiring practices that are neutral on their face but produce unequal results between protected groups, even without intent to discriminate. According to the opinion, employers no longer need to prove “business necessity”: it is enough to show that the practice is reasonable and serves a legitimate business purpose, as with degree requirements, aptitude tests and background checks.
Employees, in turn, would have to show that the specific practice directly caused the unequal outcome and point to an alternative that is equally effective for the company and produces fewer disparities. In practice, this is likely to make disparate impact charges before the EEOC more difficult.
The opinion, however, is not a court decision and does not bind judges, so claims may still be filed in state and federal courts. Intentional discrimination remains prohibited. For companies hiring in the United States, including Brazilian groups with U.S. operations, the recommendation is to keep selection criteria documented, job-related and periodically reviewed.
Opinion of the Office of Legal Counsel, U.S. Department of Justice, June 9, 2026. Source: Amundsen Davis.