What Changed in Federal Hiring Enforcement in 2026
Three federal actions between April 2025 and July 2026 changed how the government approaches employment discrimination enforcement. This article summarizes what each document says.
(Important: This article summarizes published federal documents as of August 11, 2026 and is not legal advice. Employment law varies by jurisdiction and continues to change. Consult qualified counsel about your specific practices.)
The three documents
Executive Order 14281, "Restoring Equality of Opportunity and Meritocracy." Signed April 23, 2025 and published April 28, 2025 at 90 FR 17537.
A Department of Justice Office of Legal Counsel opinion, "Constitutionality of Disparate-Impact Liability Under Title VII." Issued June 9, 2026 and signed by Assistant Attorney General T. Elliot Gaiser. It was written as a memorandum opinion for the Chair of the EEOC, at her request.
A Federal Register notice rescinding the EEOC's affirmative action guidelines. Published July 6, 2026 at 91 FR 40879, signed July 1, 2026 by EEOC Chair Andrea R. Lucas.
What disparate impact means
Disparate impact is liability for a practice that produces unequal results across groups, without regard to whether the employer intended that outcome.
The statutory framework at 42 U.S.C. 2000e-2(k) runs in three steps. The complaining party must demonstrate that a particular employment practice causes a disparate impact.
The burden then shifts to the employer to demonstrate that the practice is job related for the position in question and consistent with business necessity.
If the employer makes that showing, the burden shifts back to the complaining party to demonstrate that the employer refuses to adopt an equally effective alternative practice that would reduce the disparate impact.
That framework sits in the statute. None of the three documents changed the statutory text.
What Executive Order 14281 says
Section 2 states the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.
Section 4 directs all agencies to deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability. It lists 42 U.S.C. 2000e-2, the operative section of Title VII, among those provisions.
Section 6(a) directed the Attorney General and the EEOC Chair, within 45 days of the order, to assess all pending investigations, civil suits, and positions taken in ongoing matters that rely on a disparate-impact theory, and to take appropriate action consistent with the policy.
Section 7(b) directs the Attorney General and the EEOC Chair to jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods of promoting equal access to employment regardless of whether an applicant has a college education.
Section 9(c) states that the order is not intended to, and does not, create any right or benefit enforceable at law or in equity by any party against the United States.
What the DOJ opinion says
The opinion concludes that the EEOC's Title VII guidelines are unconstitutional because they contemplate liability based on disparate effects alone, without regard to an employer's likely intent.
It then sets out three limiting principles.
On business necessity, the opinion states that the defense requires employers to demonstrate only that the challenged practice rationally serves a valid business purpose. It states that workplace requirements and selection procedures, including background checks, aptitude tests, knowledge-based tests, SAT scores, high-school graduation requirements, and blind auditions, are presumptively job-related, and that only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.
On causation, the opinion states that plaintiffs must establish that the challenged employment practice specifically caused the alleged disparate impact, rather than external factors or other employer practices, both at the pleading stage and beyond.
On alternatives, the opinion states that plaintiffs must provide evidence of an available alternative practice that causes less disparate impact and would be equally effective for serving the employer's valid business purpose, including with respect to cost or other burdens.
The opinion's concluding section states that the EEOC's validation-study and affirmative-action regulations conflict with Title VII and the Constitution.
It also states that the EEOC and FTC background checks guidance is inconsistent with the strong presumption of job-relatedness and the leeway the opinion describes for demonstrating business necessity.
The opinion states that nothing in it precludes the use of statistical evidence as one evidentiary factor from which to infer intentional discrimination, and that statistics may be used as an evidentiary device supporting a pattern or practice claim of intentional discrimination under 42 U.S.C. 2000e-6(a).
What the opinion does not cover
The opinion expressly declines to address disparate-impact liability under the Age Discrimination in Employment Act, on the reasoning that age is not a suspect class and that disparate-impact liability in that context does not raise the same problems as under Title VII.
What the opinion says about diversity as a justification
The opinion states that the creation of a racially diverse workplace does not qualify as business necessity, because it is not race-neutral, and that there is no diversity exception to that rule.
It also states that basing employment decisions on the racial preferences of clients, customers, or coworkers constitutes intentional race discrimination.
What the Federal Register notice says
The notice removes and reserves 29 CFR part 1608, the EEOC's 1979 guidelines on affirmative action under Title VII. It is effective July 6, 2026 and applicable as of June 29, 2026, and states that the rescission is not retroactive.
Among the reasons given, the notice cites the Supreme Court's decision in Ames v. Ohio Department of Youth Services, which held that the evidentiary standard for disparate-treatment claims under Title VII does not vary based on whether a plaintiff is a member of a minority or majority group. The notice states that Ames confirms Title VII establishes the same protections for every individual.
The notice also states that it does not address disparate-impact liability under Title VII, which the Commission says is beyond the scope of the rescission.
Reading the three together
Executive Order 14281 directs agencies on enforcement priorities and states at Section 9(c) that it creates no rights enforceable at law.
The DOJ opinion was issued to the EEOC Chair at her request and sets out the executive branch's legal interpretation. It is not a court decision.
The Federal Register notice removes a regulation and states that it is not retroactive and does not address disparate impact.
The statutory framework at 42 U.S.C. 2000e-2(k) remains in Title VII.
Where distribution fits
None of the three documents addresses where an employer advertises an open role.
Job advertising rules sit in a separate part of the EEOC's guidance, which states that it is illegal to publish a job advertisement showing a preference for, or discouraging someone from applying because of, a protected characteristic. Those rules turn on what an advertisement says.
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Frequently Asked Questions
Did these documents eliminate disparate impact liability?
The statutory framework at 42 U.S.C. 2000e-2(k) remains in Title VII. Executive Order 14281 directs agencies to deprioritize enforcement and states at Section 9(c) that it creates no rights enforceable at law. The DOJ opinion was issued to the EEOC Chair at her request and sets out the executive branch's legal interpretation rather than a court ruling.
What does the DOJ opinion say about hiring tests?
It states that workplace requirements and selection procedures, including background checks, aptitude tests, knowledge-based tests, SAT scores, high-school graduation requirements, and blind auditions, are presumptively job-related, and that only irrational or arbitrary practices with no plausible job-relatedness can create disparate-impact liability.
Does this affect age discrimination?
The opinion expressly declines to address disparate-impact liability under the ADEA, on the reasoning that age is not a suspect class.
What was rescinded in July 2026?
The Federal Register notice published July 6, 2026 removes and reserves 29 CFR part 1608, the EEOC's 1979 affirmative action guidelines. The notice states the rescission is not retroactive and does not address disparate-impact liability under Title VII.
Can statistics still be used in a discrimination case?
The DOJ opinion states that nothing in it precludes the use of statistical evidence as one evidentiary factor from which to infer intentional discrimination, and that statistics may support a pattern or practice claim under 42 U.S.C. 2000e-6(a).
What does the opinion say about diversity as a business justification?
It states that the creation of a racially diverse workplace does not qualify as business necessity, and that there is no diversity exception to that rule.
Related Articles
Sources & References
Equal Employment Opportunity Commission. (2026, July 6). Rescission of guidelines on affirmative action appropriate under Title VII of the Civil Rights Act of 1964, as amended. 91 FR 40879. https://www.federalregister.gov/documents/2026/07/06/2026-13637/rescission-of-guidelines-on-affirmative-action-appropriate-under-title-vii-of-the-civil-rights-act
Exec. Order No. 14281, 90 FR 17537. (2025, April 28). Restoring equality of opportunity and meritocracy. https://www.federalregister.gov/documents/2025/04/28/2025-07378/restoring-equality-of-opportunity-and-meritocracy
U.S. Department of Justice, Office of Legal Counsel. (2026, June 9). Constitutionality of disparate-impact liability under Title VII. https://www.justice.gov/olc/media/1444871/dl
U.S. Equal Employment Opportunity Commission. (n.d.). Prohibited employment policies/practices. https://www.eeoc.gov/prohibited-employment-policiespractices
