EEOC Closes the Book On Disparate Impact Claims

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The ground just shifted under workplace civil rights. Federal investigators have closed thousands of disparate impact charges, and right-to-sue letters are landing across the country. We walk through what this change really means: the legal theory behind disparate impact, why the EEOC halted these cases, and how the responsibility now moves squarely to workers and their advocates.

We unpack the practical steps for bringing a case to court within the tight 90-day window, from identifying the exact policy at issue to gathering applicant flow data, pass rates, and workforce demographics. We talk about the role of expert statisticians, how to show that disparities are not random, and what courts look for when deciding whether a practice is job-related and consistent with business necessity. You’ll also hear how to propose less discriminatory alternatives that still meet business needs, which is often decisive in these cases.

AI-driven hiring tools loom large in the conversation. We explain how algorithms can encode historical bias, what documentation and validation employers should have, and what records plaintiffs need to request to test for adverse impact. While the EEOC steps back, some state and local agencies remain active, offering parallel options for investigation. The bottom line is urgent but empowering: your rights remain intact, the venue has changed, and preparation is everything. If you received a right-to-sue letter, mark the 90-day deadline, talk to counsel, and start building your evidence now.

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Disclaimer: For educational use only, not intended to be legal advice.

Episode Transcript

SPEAKER_00 (00:01):
Hey, it's Mark, and welcome back to the Employee
Survival Guide.
Today we're talking about theEEOC closing the books on
disparate impact claimsinvestigations.
As of September 30th, the EqualEmployment Opportunity
Commission, the EEOC, hasofficially stopped pursuing
disparate impact discriminationcases.

(00:22):
Thousands of charges builtsolely on this theory have been
closed nationwide.
Workers who filed them are nowreceiving right-to-sue notices,
effectively ending the EEOC'srole and shifting the
responsibility to privatelawsuits.
This is no longer a policy ofthe agency, and it's now a
reality.

(00:51):
The doctrine allows employees tochallenge the neutral policies
that disproportionately harmprotected groups even when there
is no direct evidence of theintent.
Examples include employmenttests that disqualify women at
much higher rates, oralgorithmic screening systems
that disproportionately excludeolder applicants.
Now the EEOC has been ordered tostand down.

(01:14):
A September 15th internaldirective required all district
offices to close pendingdisparate impact investigations
by September 30th with rights tosue notices to follow by October
31st.
Going forward, the EOC will notinvestigate or conciliate new
disparate impact charges.
If a complaint also allegesintentional discrimination, the

(01:36):
agency may continue to reviewthat portion, but the disparate
impact element will be dropped.
This shift stems from an April2025 executive order directing
federal agencies to deprioritizedisparate impact enforcement,
framing it as inconsistent withmerit-based decision making.

(01:57):
As of September 30th, the EOChas officially closed nearly all
Disperate Impact charges.
Workers who filed these claimsare now beginning to receive
right to sue notices, whichshift the case into their own
hands.
These notices are not the end ofthe road, but they start a short
clock.
You have 90 days from the dateon the letter to file your own

(02:19):
lawsuit in federal court.
If you wait too long, the claimis lost or waived.
Because the EOC no longerinvestigates or conciliates
these cases, employees must beready to take the lead.
That means working withemployment counsel to build the
kind of evidence courts demandin disparate impact litigation.

(02:39):
Statistical data will often beessential to show that a neutral
policy, whether a test, aphysical requirement, or an
algorithmic hiring tool, fallsmore heavily on one protected
group.
Expert testimony may also berequired to explain the results
and establish that thedisparities are not just random.

(03:01):
For many workers, the absence ofthe EOC makes the process more
daunting.
However, it is important torealize that the claims
themselves remain viable underTitle VII and other civil rights
laws in court.
In addition, some state andlocal agencies continue to
accept and investigate disparateimpact charges under their own

(03:22):
statutes, giving employees morethan one possible forum.
Importantly, to those withclaims currently pending in the
EOC, if you receive or noticeright to sue, time is of the
essence.
The EOC's retreat has changedenforcement, but it has not
limited your rights.
What was once an agency-drivenprocess is now a matter for the

(03:43):
courts, and the responsibilityfor carrying it forward rests
squarely with workers and theiradvocates.
This change shifts the burdenentirely onto workers.
For decades, the EOC was aprimary institution
investigating systemicpractices, from police hiring
exams that excluded minoritiesto company-wide promotion tests
that disadvantaged women.

(04:04):
Without agency enforcement,those cases don't uh those cases
don't disappear, but they becomeharder.
Employees or employers may facefewer government investigations,
but the risk of litigationremains.
In fact, by bypassing the EOC,conciliation could lead to
sharper conflicts in federalcourt where judges will now

(04:25):
decide whether a policy was atall lawfully discriminates.
Critics warn that endingdisparate impact enforcement is
especially dangerous in an erawhen AI-driven hiring tools and
algorithmic screening arespreading rapidly.
These systems can uhunintentionally replicate bias,
and without governmentoversight, employees will need

(04:46):
to rely on their own resourcesto challenge the unfair results.
For workers, the takeaway issimple, but urgent.
If your disparate impact claimwas closed by the EOC, the next
stop or the next step is yours.
File in court within 90 days andbuild the evidence you need to
win.
If you do nothing, your claimswill be lost or waived.

(05:08):
Hope you enjoyed the uh episodeand talk to you soon.