Washington Just Backed Away From “Disparate Impact.” Florida Employers Should Not.

The headline made the rounds fast: the Department of Justice declared the EEOC’s “disparate-impact” guidelines unconstitutional, and a lot of employers exhaled. After sixty years, the thinking went, the rule that a neutral policy can be illegal just because of how it lands across demographic groups was finally dead.

It is not dead. And for a Florida business, very little has actually changed about your exposure. Here is what happened, what it means, and the one move we caution against:

What actually happened

Three separate things, which the headlines tend to blur into one:

• An executive order. In April 2025, the President signed an order setting a federal policy of eliminating disparate-impact liability “to the maximum degree possible.” An executive order is a marching command to federal agencies. It is not a statute, and it cannot rewrite one.

  
  

• An enforcement retreat. The EEOC has since committed, in its current enforcement plan, to stop investigating and litigating disparate-impact claims. The agency is standing down.

  
  

• A DOJ legal opinion. In June 2026, the DOJ’s Office of Legal Counsel ("OLC") issued a formal opinion calling the EEOC’s disparate-impact guidelines unconstitutional, reasoning that they pressure employers into race-conscious decisions to avoid liability.

  
  

All three are real, but none of them repealed the law.

Why the cause of action survives

Disparate impact is not an agency invention that an agency can take back. The Supreme Court recognized it in 1971 in Griggs v. Duke Power Co. Congress then wrote it directly into Title VII in the Civil Rights Act of 1991. That statutory text is still on the books, unchanged.

An OLC opinion binds the executive branch—the agencies. It does not bind courts. A judge hearing a discrimination case is bound by the statute Congress passed and by Supreme Court precedent, not by the Justice Department’s reading of either. So the opinion changes how the federal government will enforce the law. It does not change the law a private plaintiff gets to sue under.

And that is the part employers keep missing. Title VII has always carried a private right of action. An employee, a former employee, or a rejected applicant does not need the EEOC’s blessing to sue. They file a charge, they get a right-to-sue letter, and they walk into federal court—whether or not the agency has any interest in the theory.

If anything, the federal retreat cuts the wrong way for employers. The EEOC’s investigation-and-conciliation process used to catch a lot of these disputes early and resolve them quietly. Pull that layer out, and more of these claims go straight to litigation.

The Florida wrinkle that national commentary skipped

Most of the national commentary noted that states like New York, California, and Illinois have their own disparate-impact laws on the books, so employers there stay exposed regardless of what Washington does. True. But the takeaway for Florida was usually a shrug—no state statute, so maybe Florida employers are in the clear.

They are not, and the reason is more interesting than a statute.

Florida does not separately codify disparate impact. It does something with the same effect: Florida courts have consistently held that the Florida Civil Rights Act is patterned after Title VII and is interpreted in step with it. When the controlling federal framework includes disparate impact—and it does—Florida’s law follows. An employee can bring a disparate-impact claim under the FCRA in Florida state court, work through the Florida Commission on Human Relations rather than the EEOC, and never touch the federal enforcement machinery that just stood down.

Two more details sharpen the point. Florida gives a complainant 365 days to file a charge with the state commission—longer than the federal window. And nothing the DOJ said about a federal statute changes how a Florida court reads a Florida statute. The state channel is open, it is independent, and the OLC opinion does not reach it.

So what should a Florida employer actually do?

Stay the course. Concretely:

• Keep auditing. Hiring tests, degree requirements, criminal-background screens, credit checks, and especially AI or algorithmic screening tools are the classic disparate-impact targets. Keep validating them and keep documenting why they are tied to the job.

  
  

• Run those audits through counsel. A disparate-impact self-audit can become the other side’s exhibit if it is done in the open. Done under privilege, it is protected. The difference is entirely in how you set it up.

  
  

• Watch your vendors. If a third party runs your applicant screening or scoring, the output is still your exposure. Require disparate-impact monitoring in the contract.

  
  

• Do not over-correct. The current EEOC is aggressively pursuing the opposite problem—intentional discrimination dressed up as a fix. Responding to a statistical gap with a quota, a racial balancing exercise, or a “diverse slate” mandate can hand a plaintiff a cleaner claim than the one you were trying to avoid. The safe ground has not moved: job-related criteria, applied consistently, decided on the merits.

  
  

The real question

Enforcement priorities swing with each administration. The statute and the Supreme Court precedent behind it have not moved, which means a future EEOC could switch the lights back on overnight—and the Florida state channel never went dark in the first place. A compliance program built for this month’s federal posture is a program built to be wrong in a couple of years.

Which leaves the question that several commentators across the country have asked: if no regulator is making you ask who a policy hurts, will you still ask? The employers who keep asking are not doing it out of fear of the EEOC. They are doing it because a policy that quietly screens out good people is usually just a bad policy—one that costs you talent and builds liability you have not found yet.

At Korkin Law, we help Florida businesses pressure-test the policies that draw this kind of scrutiny—before they turn into a charge or a complaint. If you want a second set of eyes on your hiring and screening practices, that is a conversation worth having now, while it is still cheap.

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This article is for general information and is not legal advice. Disparate-impact exposure turns on the specific facts of your workforce and your policies; consult legal counsel about your situation.