Pauline Kim (Washington University in St. Louis – School of Law) and Olatunde C. Johnson (Columbia University – Law School) have posted Affirming the Constitutionality of Title VII Disparate Impact Doctrine: A Response to OLC (Texas Law Review Online) on SSRN. Here is the abstract:
This essay responds to the Department of Justice’s Office of Legal Counsel (OLC) June 2026 legal opinion arguing that disparate impact doctrine, a well-established part of Title VII jurisprudence for decades, is unconstitutional as currently interpreted. Disparate impact has been an important doctrine in ensuring that employers do not engage in employment practices that arbitrarily and unjustifiably exclude members of certain groups, and this essay makes clear its continuing validity. As we explain, OLC’s Opinion is based on an incorrect characterization of how the disparate impact standard of proof functions, misconstrues the text and purpose of the statute, and manufactures a conflict with the Equal Protection Clause that does not exist. The OLC Opinion falsely claims that Title VII disparate impact requires “racial proportionality,” contrary to the statutory text, and the opinion offers no evidence to support its assertion that the doctrine forces employers to engage in discrimination. Its legal analysis ignores decades of Supreme Court jurisprudence interpreting, applying and upholding the standard. Because Title VII’s disparate impact standard is found in the express language of the statutory text, is fully consistent with the Equal Protection Clause, and falls within Congress’s legislative power under the Commerce Clause and the Fourteenth Amendment, it remains part of anti-discrimination law. OLC opinions are neither binding nor entitled to any special weight outside the executive branch, and courts should uphold Congress’s intent to prohibit disparate impact discrimination and to encourage employers to remove arbitrary and unjustified barriers to fair employment opportunity.
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