What OLC Can Do—and What It Cannot Do

The June 9, 2026 OLC Opinion Can Reshape Federal Enforcement. It Cannot Amend Title VII, Bind the Courts, or Erase State Antidiscrimination Law.

On June 9, 2026, the United States Department of Justice’s Office of Legal Counsel issued Constitutionality of Disparate-Impact Liability Under Title VII, a twenty-five-page memorandum directed to the Chair of the Equal Employment Opportunity Commission. The opinion attacks the EEOC’s longstanding interpretation of disparate-impact liability, the Uniform Guidelines on Employee Selection Procedures, and the validation framework that has governed employment testing and selection procedures for decades. According to OLC, disparate-impact liability under Title VII should function principally as an evidentiary mechanism for identifying a “significant likelihood” of intentional discrimination; employment practices such as background checks, aptitude tests, and other selection procedures should be presumed job-related; and an employer should satisfy business necessity by showing little more than that the challenged practice rationally serves a valid business purpose.

The Department of Justice has been equally clear about why it issued the opinion. DOJ announced that the memorandum helps implement Executive Order 14281 and characterized the existing EEOC disparate-impact framework as constitutionally defective. That makes the administration’s objective plain enough. What requires considerably more attention, however, is the difference between changing the Executive Branch’s interpretation and enforcement of Title VII and actually changing Title VII itself. Those are not remotely the same thing, and no amount of repetition from DOJ, OLC, or the EEOC can make them the same thing.

That distinction is precisely why the September 17, 2026 Multistate Guidance on Antidiscrimination Protections issued by the Attorneys General of Massachusetts, Maryland, New York, California, Delaware, Hawai’i, Illinois, Michigan, Minnesota, Nevada, New Mexico, Oregon, Vermont, and Washington matters. The Attorneys General are not claiming that their guidance creates a new civil-rights regime. They expressly say the opposite: the guidance provides information concerning existing law and “creates no rights or obligations beyond existing law.” What they are doing is drawing an important legal line around the current federal campaign against disparate-impact liability. The Executive Branch can change its enforcement philosophy. It can change its litigation position. It can seek to repeal or amend regulations through lawful administrative processes. It can ask courts to accept a narrower interpretation of Title VII. What it cannot do is use an executive order, agency memorandum, or OLC opinion as a substitute for Congress, the courts, or state legislatures.

The Attorneys General say exactly that. Their guidance states that “[t]he President and federal agencies cannot rewrite laws passed by Congress, nor use executive orders or agency rules or memoranda to change protections provided under the Constitution or federal or state laws.” That is not political rhetoric masquerading as legal analysis. It identifies the threshold institutional question presented by the June 9 memorandum: who actually has authority to change the law?

OLC Has Significant Authority, but Its Authority Has a Boundary

There is no reason to minimize what OLC is or what its opinions can accomplish. OLC performs one of the most important legal functions within the federal Executive Branch. DOJ describes OLC’s core function as providing “controlling advice to Executive Branch officials” on significant questions of law, and its own published guidance explains that, subject to the President’s constitutional authority, OLC opinions are controlling on questions of law within the Executive Branch. That means the June 9 opinion can have immediate practical consequences. It can influence what cases the EEOC investigates, what theories DOJ advances, how agencies view existing regulations, what guidance is withdrawn, and what administrative action the federal government attempts next.

But the same DOJ materials identifying OLC’s authority also identify its boundary. OLC provides legal advice to the President and Executive Branch agencies. It does not exercise Article III judicial power, and it does not legislate. DOJ’s own description of the office locates its authority in the Attorney General’s power to advise the President and Executive Branch departments under 28 U.S.C. §§ 511–513 and the Attorney General’s delegation of that function to OLC. Its opinions may therefore control the Executive Branch’s legal position. They do not become statutes, and they do not become binding judicial precedent merely because the Executive Branch intends to act upon them.

That matters here because Congress did not leave disparate-impact liability entirely to agency invention. OLC acknowledges Griggs v. Duke Power Co., 401 U.S. 424 (1971), where the Supreme Court recognized that Title VII reaches employment practices that may be neutral in form but discriminatory in operation. More importantly, OLC acknowledges that Congress subsequently amended Title VII through the Civil Rights Act of 1991 and enacted 42 U.S.C. § 2000e-2(k), expressly setting out the statutory structure governing disparate-impact claims. Whatever one thinks about Griggs, disparate impact did not remain merely a judicial gloss resting untouched on the original 1964 statutory text. Congress acted.

OLC’s own memorandum recites the statutory framework. A complaining party must demonstrate that an employer uses a particular employment practice that causes a disparate impact based upon race, color, religion, sex, or national origin. The employer must then demonstrate that the challenged practice is “job related for the position in question and consistent with business necessity.” If the employer makes that showing, the statute separately addresses an alternative employment practice capable of reducing the disparate impact. Those are not administrative slogans. They are statutory commands enacted by Congress.

Yet OLC proceeds to materially alter how those commands operate. It says that workplace requirements and selection procedures should be presumed job-related. It says the business-necessity burden should not be a substantial one and should be satisfied where the employer demonstrates that a practice is rational, convenient, helpful, or otherwise serves a valid business purpose. It further insists that disparate-impact liability must be cabined so that it functions primarily as an evidentiary mechanism for detecting circumstances strongly suggestive of intentional discrimination. That construction does far more than tell federal agencies to exercise restraint in enforcement. It changes the substantive meaning of the statutory burden Congress selected.

That is where OLC invokes constitutional avoidance. The opinion reasons that Title VII must be read narrowly enough to avoid what OLC believes would otherwise be serious equal-protection problems. OLC therefore identifies three limiting principles it considers necessary to prevent what it describes as a constitutional collision: substantial employer latitude under business necessity, demanding causation, and a heightened obligation upon plaintiffs to identify an equally effective, less discriminatory alternative. That is a legal argument OLC is entirely entitled to make. The administration can advance it in court, ask the EEOC to act consistently with it, and seek appropriate regulatory changes based upon it.

What OLC cannot do is convert that argument into a judicial holding by announcing it from within the Executive Branch. If Congress’s use of “job related for the position in question and consistent with business necessity” raises a constitutional problem, the Executive Branch can present that problem to the courts. If Congress wants a different liability standard, Congress can amend the statute. If the Supreme Court ultimately concludes that Title VII must be construed as OLC proposes, that decision will have the force of judicial precedent. Until one of those things happens, the Executive Branch has changed its legal position; it has not amended the United States Code.

The distinction becomes even more important because OLC’s construction threatens to collapse the conceptual difference between disparate treatment and disparate impact. Disparate treatment already requires intentional discrimination. Disparate-impact liability developed because facial neutrality does not necessarily mean that an employment practice operates lawfully. A policy can apply identically to everyone and still unnecessarily exclude a protected group. Congress’s statutory framework recognizes that separate inquiry. Reconstructing disparate-impact liability so that it becomes principally a device for identifying probable discriminatory intent risks converting one theory of discrimination into a more difficult route toward proving the other.

That may ultimately be where federal law goes. But OLC does not get to take it there alone.

The Attack on Validation Reveals the Real Consequences of the OLC Theory

The most consequential portion of the June 9 opinion may not be its broad constitutional rhetoric. It may be OLC’s direct attack on the Uniform Guidelines on Employee Selection Procedures and, specifically, the validation requirements used to determine whether employment tests and other selection procedures actually measure something relevant to successful job performance.

OLC describes the Guidelines’ validation structure as “atextual and onerous.” It criticizes the requirement that employers using selection procedures with adverse impact establish evidence concerning the validity and utility of those procedures, and it attacks the detailed technical requirements governing criterion-related validity, content validity, and construct validity. The opinion complains that the Guidelines require extensive documentation and statistical analysis and argues that those requirements impose considerably more than OLC believes Title VII’s business-necessity defense permits.

That dispute is not academic. It goes directly to what an employer must show when a facially neutral employment device disproportionately screens out members of a protected group. There is an enormous difference between proving that a particular test actually predicts or measures something material to successful job performance and merely articulating a plausible business reason for using the test. The first inquiry demands evidence connecting the instrument to the job. The second can devolve into assumption.

This distinction matters across virtually every area in which employers use standardized selection mechanisms. A written examination can be professionally designed and still test material that bears little relationship to actual job duties. A physical requirement can appear intuitively reasonable while unnecessarily excluding one sex. A criminal-history screen can be uniformly applied while sweeping far beyond anything reasonably related to the risks associated with the position. A drug-testing technology can accurately detect a substance or metabolite while the employer remains unable to establish that the result measures present impairment, current drug use, job performance, or some other legitimate employment criterion. The fact that a device measures something does not establish that the thing being measured is relevant to the employment decision.

That is why validation is so important. Validation forces the employer to move beyond “we have always done it this way,” “the vendor says the test works,” or “the requirement sounds reasonable.” It requires an examination of what the procedure measures, whether it measures that characteristic reliably, whether the characteristic matters to successful performance of the particular job, and whether the employer’s cutoff or method of use is defensible. Those questions are not an exercise in social engineering. They are the difference between evidence-based personnel selection and institutional habit dressed up as objectivity.

OLC’s proposed presumption significantly changes that starting point. Under its approach, workplace requirements and selection procedures are generally presumed job-related, and only practices lacking plausible job-relatedness should create disparate-impact liability. The employer therefore receives the benefit of the assumption before the validity of the employment barrier has been meaningfully tested. That is particularly consequential where the selection procedure creates a measurable racial, sex-based, or other protected-class disparity, because the very existence of disparate-impact analysis reflects the recognition that facial neutrality does not establish substantive fairness or job relatedness.

The multistate Attorneys General support a materially different approach. Their guidance repeatedly emphasizes examining what policies actually do rather than stopping at how they are described. They recognize both intentional discrimination and practices that produce unjustified discriminatory effects. They specifically explain that a facially neutral rule may cause disproportionate harm or unnecessarily exclude protected groups from employment, housing, education, or other opportunities. At the same time, the guidance does not claim that every unequal result establishes discrimination. It recognizes that justification is context-specific and expressly notes that disparate effects in hiring may be justified by the legitimate requirements of a particular business, profession, or job.

That is an important distinction because much of the attack on disparate-impact liability depends upon describing it as little more than a demand for racial proportionality. The guidance does not support that proposition. It supports examining whether barriers are justified. It supports identifying the particular practice creating the disparity. It supports data collection and analysis. And in the employment context, it specifically supports standardized qualifications and criteria focused upon the skills and experience relevant to the job.

That is not a quota system. It is an evidentiary inquiry into whether an institution can justify what it is doing.

If a selection process disproportionately eliminates Black applicants, the statistical disparity does not end the analysis. It begins it. What caused the disparity? What precisely is being measured? Is that characteristic actually necessary or meaningfully related to successful performance? Was the selection procedure validated for the purpose for which the employer is using it? Is there another method capable of satisfying the same legitimate business need without producing the same unnecessary exclusion? Those questions become especially important where an employer relies upon a technical or scientific process, because the appearance of scientific objectivity can conceal methodological weaknesses just as easily as a written examination can conceal irrelevant content.

OLC would make those questions substantially easier for employers to answer by beginning with a presumption in favor of the selection procedure. The Attorneys General are supporting the continued use of data, job-related criteria, and effects-based scrutiny to determine whether the barrier can actually be justified. That is the real doctrinal conflict beneath the political noise surrounding disparate impact.

Federal Retreat Does Not Erase State Civil-Rights Law

The second major point in the September 17 guidance is one that employers operating in states such as New York should understand immediately: federal enforcement policy is not synonymous with the entirety of American civil-rights law.

The federal government can decide to bring fewer disparate-impact cases. The EEOC can alter its enforcement priorities. DOJ can stop defending prior federal interpretations. Agencies can attempt to withdraw guidance or amend regulations. The administration can challenge the constitutionality of existing rules and ask courts to accept a narrower construction of federal statutes. Those decisions matter because federal enforcement matters, but none of them automatically repeal state law.

The Attorneys General make that distinction explicit. Their guidance states that the participating states continue to uphold state and federal civil-rights protections and describes disparate-impact liability as a longstanding mechanism for addressing policies that appear neutral but create unjustified discriminatory effects. They also emphasize that state and federal civil-rights protections arise from separate legal sources and that federal executive action cannot simply change rights established by state law.

For New York, the practical consequence is obvious. A federal administration’s hostility toward disparate-impact theory does not itself amend the New York State Human Rights Law or any other independent state protection. The federal Executive Branch does not possess authority to repeal state statutes through executive order, DOJ press release, OLC memorandum, or EEOC enforcement policy. Whatever changes occur at the federal level therefore have to be analyzed separately from the rights, duties, and enforcement mechanisms existing under state law.

The same is true of the Attorneys General themselves. Their September 17 guidance does not create new liability merely because fourteen state law-enforcement officials signed it. The document says that expressly. Its significance is instead that these Attorneys General are publicly identifying the legal position their offices will continue to support: intentional discrimination remains unlawful; facially neutral practices can still be examined for unjustified discriminatory effects; data analysis remains a legitimate mechanism for identifying disparities; institutions can proactively examine their own policies; and state civil-rights enforcement does not disappear because federal enforcement philosophy changes.

That is a consequential message to employers and public institutions because federal retreat can create a false sense that the underlying legal risk has disappeared. It has not necessarily disappeared. It may have shifted. An employer may face less aggressive federal administrative enforcement while remaining subject to state enforcement, private litigation, or statutory obligations arising independently of federal agency policy. Anyone advising an employer based solely upon what the current EEOC or DOJ intends to enforce would therefore be confusing enforcement discretion with the substantive universe of applicable law.

The same mistake should not be made in the opposite direction. The multistate guidance does not bind courts merely because state Attorneys General issued it. Its legal propositions remain subject to the statutes, regulations, constitutions, and controlling judicial decisions governing the particular claim. But the Attorneys General do not pretend otherwise. That is part of what distinguishes their guidance from the broader implication created by the federal campaign against disparate impact. The states expressly acknowledge that their document creates no new rights. Their point is that existing ones cannot simply be wished away.

That is where I think the June 9 OLC opinion and the September 17 multistate guidance should be read together. OLC has every right to advise the Executive Branch that it believes existing disparate-impact doctrine raises serious constitutional problems. The administration has every right to change its enforcement policies and take that argument into court. What it does not have is unilateral authority to convert that position into an amendment of Title VII or a repeal of independent state civil-rights protections.

The argument matters even more because Congress expressly addressed disparate impact in the Civil Rights Act of 1991. OLC is not confronting an administrative doctrine floating free of statutory text. It is confronting a statutory structure that Congress enacted after Griggs and that expressly uses the language “job related for the position in question and consistent with business necessity.” OLC can argue that constitutional avoidance requires a narrow construction of those words. It can argue that the Uniform Guidelines go beyond them. It can argue that particular applications create impermissible pressure for race-conscious decision-making. Those are legitimate issues for litigation.

But an argument is not a holding, and an OLC memorandum is not legislation.

That is the line the September 17 guidance draws, and it is the right line for understanding what is actually happening. The federal Executive Branch is attempting to move disparate-impact doctrine dramatically in one direction. Fourteen Attorneys General are signaling that their jurisdictions will continue to recognize and enforce the protections that remain available under existing law. The ultimate boundaries of federal disparate-impact liability will be worked out through statutes, lawful administrative action, and judicial decisions—not by pretending that an Executive Branch memorandum did the work of all three.

OLC can advise the Executive Branch. It can influence federal enforcement. It can attack the Uniform Guidelines. It can develop a constitutional theory and ask the courts to adopt it. What it cannot do is amend Title VII by memorandum, bind Article III courts to its preferred construction, or make state antidiscrimination laws disappear. The September 17 guidance matters because it makes equally clear what the participating Attorneys General intend to support: continued enforcement of existing civil-rights protections, scrutiny of facially neutral practices that produce unjustified discriminatory effects, use of data to identify barriers, and employment criteria that can actually be connected to the job.

That is where the real fight is.

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