Compliance Stuff

The Department of Justice Antitrust Division’s Whistleblower Rewards Program has attracted significant attention since its launch in 2025 and following the Division’s announcement of its first whistleblower reward less than a year later. The program fundamentally alters the timeline of criminal antitrust investigations by financially incentivizing employees and former employees to approach the Division prior to a company completing an internal investigation, assessing exposure, or making leniency decisions. Since its launch, considerable attention has focused on how the program works and what it means for corporate compliance and leniency. Within that discussion, some misconceptions have emerged regarding both whistleblower eligibility and the program’s practical effect on antitrust investigations . As one of the former Division officials involved in launching and implementing the program, I believe those misconceptions obscure what may be the program’s most significant consequence: it...

The Department of Justice’s Office of Legal Counsel (OLC) issued a Memorandum Opinion for the Chair of the Equal Employment Opportunity Commission (EEOC) stating that the EEOC’s current interpretive rules and guidance interpreting the disparate-impact provisions of Title VII of the Civil Rights Act are unconstitutional. In response to the OLC Memo, EEOC Chair Andrea Lucas stated: “We believe this opinion will provide clarity regarding the Constitutional limits of disparate impact in employment discrimination matters.” [1] In its Memo, OLC articulated the position that the EEOC’s existing guidelines are unconstitutional because “[r]ather than treating disparate impact as an evidentiary mechanism to smoke out intentional discrimination —imposing liability only when disproportionate adverse effects give rise to a strong inference of intentional discrimination —EEOC’s historic interpretations contemplate liability based on disproportionately adverse effects alone, without regard to an empl...

The Trump administration has continued its efforts to step back from enforcing “unintentional” workplace bias liability and is focused on intentional discrimination instead. The EEOC announced earlier this month that it would continue to only prioritize enforcement in intentional discrimination cases (known as disparate treatment liability ), with a focus on bias in DEI programs. The agency will not focus on workplace discrimination stemming from a policy or practice that unintentionally discriminates against a population of employees (which is known as disparate impact liability ). Notably, the Department of Justice (DOJ) backed that position in a June 9 memo giving its opinion that the disparate impact theory of liability is likely unconstitutional. According to the DOJ, the government has been holding employers to an unfairly high standard when it comes to defending everyday workplace practices like background checks, skills tests, and education requirements . The DOJ’s position h...

On June 9, 2026, the U.S. Department of Justice (DOJ) issued a significant legal opinion concluding that the Equal Employment Opportunity Commission’s (EEOC) longstanding interpretation of Title VII disparate impact liability is unconstitutional. The opinion questions aspects of the Uniform Guidelines on Employee Selection Procedures (UGESP), the federal framework that has guided employers’ validation of employment tests and selection procedures for nearly 50 years. While the DOJ opinion does not change Title VII itself and is not binding on federal courts, it signals a potentially significant shift in federal enforcement priorities and creates new uncertainty for employers. For HR, compliance, legal, and talent acquisition professionals, the key question is straightforward: Should employers change how they evaluate seemingly neutral employment practices, including tests and other selection procedures? At least for now, the answer is generally no. A Brief Refresher: Disparate Impact an...