The US Equal Employment Opportunity Commission has placed intentional discrimination at the centre of its National Enforcement Plan, while the Department of Justice has issued an Office of Legal Counsel opinion rejecting the EEOC’s historic interpretation of disparate-impact liability under Title VII of the Civil Rights Act of 1964.
Approved on 4 June, the National Enforcement Plan covers fiscal years 2025 to 2029 and replaces the EEOC’s Strategic Enforcement Plan for 2024 to 2028. Chair Andrea Lucas said the agency would focus on merit-based and even-handed enforcement.
The plan prioritises repeated, overt or facially discriminatory practices, broad employment policies involving intentional discrimination, unresolved legal questions and cases affected by recent US Supreme Court authority.
The EEOC says it will prioritise disparate-treatment theories, eliminate the use of disparate-impact theories in investigations to the maximum degree possible and stop commencing, developing or continuing litigation advancing disparate-impact claims.
It links that position to Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, while retaining cooperation with the Department of Justice, Department of Labor, Department of Education, state attorneys general and Fair Employment Practices Agencies.
The federal shift was reinforced on 9 June when the Office of Legal Counsel, responding to a request from Andrea Lucas, concluded that the EEOC’s existing interpretation of Title VII was unconstitutional.
The opinion, signed by Assistant Attorney General T. Elliot Gaiser and Deputy Assistant Attorney General Joshua J. Craddock, argues that disparate-impact liability should apply only where a practice creates a significant likelihood of intentional discrimination.
The opinion interprets the business-necessity defence as requiring an employer to show only that a challenged practice rationally serves a valid business purpose. It also treats workplace requirements such as background checks, aptitude tests and other selection procedures as presumptively job-related, while requiring claimants to identify the specific practice causing the disparity and present an equally effective alternative with a lower disparate impact.
Its reasoning addresses the Uniform Guidelines on Employee Selection Procedures and revisits Griggs v Duke Power Co., the US Supreme Court decision that recognised disparate-impact liability before Congress codified the framework through the Civil Rights Act of 1991. The OLC opinion is an executive branch interpretation rather than a court judgment, so it does not by itself displace the statutory text or binding judicial precedent.
Employment solicitors, US litigators and in-house counsel should therefore avoid treating the policy change as the end of disparate-impact exposure. Employers reviewing recruitment tests, promotion criteria, background screening or DEI programmes will still need clear evidence of business purpose, consistent decision-making and an assessment of state and local law.
Law firms should now prepare for disputes over the weight courts give the OLC opinion, the reach of Executive Order 14281 and the continuing effect of Title VII precedent. Advice that distinguishes federal enforcement policy from binding statutory and appellate authority will be increasingly important.