You've probably seen the headlines. "DOJ says disparate impact is unconstitutional." Maybe a colleague forwarded the article with one word: "Thoughts?" And now you're wondering whether you need to rewrite your entire background check policy by Friday.
You don't. But you do need to understand what happened, what it means for your screening, and where the real compliance risks still live.
What the DOJ's June 2026 Opinion Says
On June 9, 2026, the Department of Justice's Office of Legal Counsel (OLC) issued a formal memorandum concluding that the EEOC's longstanding disparate impact guidelines under Title VII are unconstitutional. The opinion faults the EEOC for allowing liability based on disproportionately adverse effects alone, without regard to an employer's likely intent.
A quick definition. "Disparate impact" describes a practice that looks neutral on paper but screens out members of a protected class at a higher rate than everyone else. Title VII protects race, color, religion, sex, and national origin, so the theory has never been limited to race alone. You don't have to intend to discriminate; if you can't justify the gap, that has traditionally been enough for a Title VII claim. The opinion changes the federal view in three ways.
Common screening tools get the benefit of the doubt. The memorandum treats workplace selection procedures, including criminal background checks, aptitude tests, and educational requirements, as presumptively job related. That flips the burden onto the challenger to show a tool doesn't belong, and it treats a practice as a problem only when it is arbitrary or irrational rather than a genuine business tool.
The defense standard drops. The old framework asked employers to show "business necessity," a strict test that often meant validation studies. The opinion leans toward a broader "valid business purpose" standard, where a reasonable practice serving a legitimate interest carries weight. How much difference that makes depends on how courts respond.
Plaintiffs have to do more work. A plaintiff can no longer rely on aggregate statistics showing different pass rates. They have to identify the specific practice causing the disparity, show it caused the gap, and point to an alternative that works as well for the employer with less disparity. The DOJ now treats disparate impact as evidence of possible intentional bias, not a standalone theory of liability based on unequal outcomes alone.
What the Opinion Changes, and What It Doesn't
What it changes, in theory. If your criminal background checks are clearly tied to job-related risks and applied consistently, federal enforcement will likely be more deferential, and a reasonable safety or loss-prevention rationale now carries more weight than it did when a formal validation study was the expectation. For employers who already document their policies, this is a modest tailwind, not a green light to stop.
What it does not change. This is the part that matters most.
- The opinion is not law. It is an executive-branch legal position, not a statute, regulation, or court ruling, and it does not amend Title VII.
- Courts are not bound by it. Federal and state courts remain free to apply existing disparate impact precedent.
- The EEOC asked for this opinion and has embraced it. Chair Andrea Lucas requested the DOJ review, and the Commission publicly welcomed the conclusion, calling it useful clarity on the constitutional limits of disparate impact. It points the same way as the agency's own 2026 National Enforcement Plan, which puts intentional discrimination at the top of the list and steps back from disparate impact theories. Enforcement posture can change under future leadership, but for now the two agencies are aligned.
- Private plaintiffs can still sue. Nothing in the opinion removes an applicant's ability to bring a disparate impact claim under Title VII.
- The FCRA is untouched. Your obligations around disclosure, authorization, adverse action notices, timing, and accuracy remain in effect, so your automated adverse action process does not change because of this memo.
"The DOJ won't enforce this way" is not the same as "this is no longer the law." One is an enforcement posture; the other would take Congress or the Supreme Court.
Why State Laws Still Apply
For a multistate employer, state law is almost certainly your biggest compliance constraint, and the DOJ opinion doesn't touch it. Almost every state has its own anti-discrimination statute, and many allow disparate impact claims that mirror or expand Title VII. A federal interpretation does not amend those statutes, bind state courts, or limit state attorneys general.
Fair-chance and ban-the-box laws go further, regulating criminal background checks directly without anyone having to prove disparate impact at all. The NYC Fair Chance Act, California's AB 1008, and the Illinois Job Opportunities for Qualified Applicants Act each set their own requirements, and they vary operationally:
- Delaying criminal history questions until after a conditional offer
- Prohibiting consideration of arrests that did not lead to conviction
- Limiting how far back you can look at conviction records
- Mandating an individualized assessment that weighs the nature of the offense, time elapsed, and relevance to the job
- Requiring written notice and a chance to respond before you rescind an offer over criminal history
These are statutory mandates that apply whether or not the DOJ cares about disparate impact. If you hire in California, New York, Illinois, Colorado, or any of the growing list of fair-chance jurisdictions, the June 2026 opinion changes nothing about your day-to-day obligations. Loosening your policy on the strength of a DOJ memo while ignoring state law is the fastest way to create real exposure, and KRESS keeps a state-by-state compliance guide that maps these requirements across jurisdictions.
What You Should Do Now
The right response is to sharpen your process, not relax it.
- Document job-relatedness, then confirm you apply it consistently. Tie your criminal background check criteria to a legitimate business purpose for each role, and if you can't explain in two sentences why a conviction type is relevant to a role, that's a gap worth closing. Then audit whether the criteria run uniformly across candidates, locations, and hiring managers, because inconsistent application is a liability magnet regardless of the federal climate.
- Keep individualized assessment in place. Don't default to blanket exclusions. Keep weighing each candidate's offense, its recency, evidence of rehabilitation, and the job context. The mechanics of that assessment are covered in fair chance hiring compliance.
- Map your state and local obligations. Confirm you meet each jurisdiction's ban-the-box, fair-chance, and adverse action rules. The hiring decision stays yours; the goal is to make sure the process behind it holds up.
- Keep FCRA compliance tight. Adverse action notices, disclosure timing, authorization, and look-back periods are unaffected by the opinion. Don't let a change in one area distract you from obligations that remain intact.
Then keep watching. Appellate decisions on disparate impact through 2026 and into 2027, any further EEOC action, and state legislative changes are all worth tracking, because this is a moving picture rather than a settled one.
How KRESS Helps
When the legal framework moves but your obligations don't, you need a partner who can tell the difference. We help employers document criminal background check criteria around job-relatedness, configure screening packages for differing state and local requirements, and run compliance reviews that confirm your checks are applied consistently. You make the hiring decision; a compliance partner makes sure the process behind it is defensible.
Frequently Asked Questions
Does the opinion mean disparate impact is no longer part of Title VII?
No. It is an executive-branch legal position, not a change to the statute. Title VII still encompasses disparate impact claims, and courts can keep applying the theory under existing Supreme Court and circuit precedent.
Can I stop doing individualized assessments now?
No. Many state and local fair-chance laws require them regardless of the DOJ's federal position, so skipping them could put you out of compliance in several jurisdictions at once.
Does this affect the FCRA or how reports are handled?
No. The opinion addresses Title VII disparate impact theory only. Every FCRA requirement, including disclosure, authorization, adverse action notices, timing, and accuracy, remains in effect.
Are state ban-the-box and fair-chance laws still enforceable?
Yes. State and local laws that govern when and how you can consider criminal history are independent of federal disparate impact doctrine, and the opinion has no effect on them. KRESS's state-by-state compliance guide confirms your obligations by jurisdiction.
Talk to KRESS
Not sure your background check policy is ready for what comes next? Talk to KRESS. We will help you review your screening criteria, map your state obligations, and confirm your process holds up no matter how federal enforcement changes. Get a quote today.