DOJ Opinion Makes Workplace Discrimination Harder to Prove: What It Means for Workers

The Department of Justice (DOJ) recently issued a legal opinion that makes workplace discrimination harder to prove. This opinion targets how the Equal Employment Opportunity Commission (EEOC) handles hiring recommendations, arguing that some of those recommendations are unconstitutional. For workers, this shift signals a tougher road ahead when filing discrimination claims.

What the DOJ Opinion Actually Says

The DOJ’s Office of Legal Counsel (OLC) found that the EEOC’s hiring guidelines pushed employers to consider race in hiring. According to The Hill, the DOJ believes this pressure violates the Constitution. This is a rare move—the DOJ rarely publicly disagrees with the EEOC. The opinion is part of a broader effort by the Trump administration to reduce diversity, equity, and inclusion (DEI) initiatives.

David Glasgow, executive director of the Meltzer Center for Diversity, Inclusion, and Belonging at NYU School of Law, explains: “Honestly, this opinion means very little on its own. President Trump already issued an executive order last year instructing agencies to deprioritize enforcement of disparate-impact claims. This opinion just adds legal detail. Workers can still file disparate impact claims on their own. But this administration has made clear it’s not going to support such claims.”

Understanding Disparate Impact Discrimination

Disparate impact is a type of workplace discrimination that happens when a company policy seems neutral but actually hurts a protected group—even if the company didn’t mean to discriminate. This is different from intentional discrimination.

Title VII of the Civil Rights Act of 1964 protects workers from discrimination based on race, color, religion, sex, and national origin. Leslie Marant, an attorney and founder of The ESP Effect, shares a key example:

“Before Title VII, Duke Power openly segregated jobs. Black employees were mostly in the labor department. When overt discrimination became illegal, the company required a high school diploma and aptitude tests for better-paying jobs. Black workers failed those screens at much higher rates. The company couldn’t prove the requirements were necessary for the work.”

The Supreme Court ruled that if a policy disproportionately excludes a protected group and isn’t job-related, Title VII applies. Marant adds: “You don’t need a smoking-gun email saying, ‘Let’s discriminate.’ The outcome itself can trigger scrutiny.”

Examples of Disparate Impact in the Workplace

• Hiring tests that screen out more women or minority applicants without being job-related
• Degree requirements that aren’t necessary for job performance
• Background checks that disproportionately affect certain racial groups
• Promotion processes that favor one group over another without clear reasons
• Algorithms or AI tools that produce biased results

What the DOJ Opinion Means for Workers

The law hasn’t changed. Workers can still bring disparate impact claims under Title VII. Courts can still hear those cases. Congress hasn’t repealed the Civil Rights Act. But the federal government’s attitude has shifted.

Marant explains: “The EEOC and DOJ now appear hostile to disparate impact enforcement. They’ll likely be less willing to investigate, pursue, or support these claims. Employers don’t usually say, ‘We’re using this policy to exclude Black workers, women, older workers, or disabled workers.’ Disparate impact liability was one tool workers had to challenge systems, tests, screening tools, promotion practices, and hiring criteria.”

She adds: “Race often dominates these debates, but disparate impact doctrine has historically covered many groups beyond race. That broader context gets lost.”

Practical Tips for Employees Facing Discrimination

Both Glasgow and Marant offer clear advice for workers who believe they’ve faced discrimination.

Keep Filing Claims

Glasgow says: “Keep going. Disparate-impact liability is still in the law. This is just a DOJ opinion—no binding legal effect.”

Build Stronger Evidence

Marant advises: “Don’t panic, but pay attention. The law hasn’t changed, but the burden will be heavier. Build your case with more evidence and specificity. Ask yourself: Was it a test? A degree requirement? A background check? A promotion process? Who was affected? How was it applied? Was it consistent? What evidence shows a measurable disadvantage?”

Document Everything

Marant stresses: “Save everything. Save the job posting. Save the email. Save the performance review. Save the policy. Save the screenshot. Don’t assume you’ll remember later—you won’t. Six months from now, your documentation is far more valuable than your memory. General unfairness rarely wins cases. Specific policies, specific decisions, and specific evidence do.”

Key Takeaways

• The DOJ opinion does not change the law—workers can still sue under Title VII.
• Federal agencies are less likely to support disparate impact claims.
• Workers should focus on gathering detailed evidence and documentation.
• Disparate impact covers many protected groups, not just race.
• Stay informed and proactive if you suspect discrimination at work.

While the DOJ’s opinion makes workplace discrimination harder to prove, the legal framework remains intact. Workers who prepare carefully and document thoroughly still have strong options to fight unfair treatment.