Labor & Employment Law Daily Wrap Up, FEDERAL REGULATIONS—OPM removes federal hiring guideline references from federal personnel regulations, (Jul 30, 2026)

By Brandi O. Brown, J.D.

OPM said the changes are needed to conform to the opinion issued in June by the Justice Department’s Office of Legal Counsel.

The U.S. Office of Personnel Management (OPM) has issued an interim final rule removing references to the Uniform Guidelines on Employee Selection Procedures (UGESP) from federal personnel regulations, the latest step in a broader Trump administration effort to dismantle the use of disparate-impact analysis in federal civil rights enforcement and employment law.

The interim final rule, scheduled for publication July 31, removes references to the nearly five-decade-old guidelines from regulations governing federal hiring practices, category rating systems, reemployment priority lists, and equal-opportunity recruitment programs. OPM said the changes are necessary to conform its regulations to a June 9 opinion issued by the Justice Department’s Office of Legal Counsel (OLC), which concluded that key elements of the guidelines are unlawful.

Screening tool evaluations. UGESP, adopted in 1978 by several federal agencies, including the EEOC, has long served as the federal government’s principal framework for evaluating whether tests, screening tools, educational requirements, and other employment-selection procedures unlawfully disadvantage protected groups. The guidelines emphasize adverse-impact analysis and generally require employers to validate selection procedures that produce significant disparities among demographic groups.

Disparate impact challenges. The OPM rule follows a series of administration actions challenging the disparate-impact theory of discrimination, a legal doctrine under which employers may be liable for employment practices that disproportionately affect protected groups even when there is no evidence of discriminatory intent.

That doctrine traces back to the Supreme Court’s landmark 1971 decision in Griggs v. Duke Power Co., which held that Title VII of the Civil Rights Act prohibits not only intentional discrimination but also employment practices that are “fair in form, but discriminatory in operation.” Congress later codified disparate-impact liability as part of the Civil Rights Act of 1991.

Executive order. The administration, however, has increasingly questioned that framework. In Executive Order 14281, issued in April, the White House argued that disparate-impact liability creates a presumption of unlawful discrimination based on differences in outcomes among demographic groups. The Justice Department subsequently revised its Title VI regulations in late 2025 to eliminate disparate-impact provisions, and reports emerged that the Equal Employment Opportunity Commission had begun deprioritizing disparate-impact investigations.

OLC opinion. The June OLC opinion represented the administration’s most direct challenge yet. According to OPM’s rulemaking notice, OLC concluded that EEOC interpretations, including the Uniform Guidelines, embrace an unconstitutional reading of Title VII by allowing liability based on disparate effects alone and by encouraging race-conscious decision-making to avoid potential claims. OLC also determined that the guidelines’ validation-study requirements impose obligations that exceed what federal law demands.

“Despite trying to promote equality, EEOC’s disparate impact liability interpretation under Title VII actually fosters the very discrimination its guidelines seek to address,” Acting Attorney General Todd Blanche said when the opinion was released.

In that opinion, DOJ argued for a substantially narrower approach to disparate-impact claims. Under its formulation, plaintiffs would need to show that a specific employment practice directly caused a disparity and identify an alternative practice that would achieve the employer's objectives while producing fewer disparate outcomes. The opinion further contended that employers should generally be permitted to use aptitude tests, knowledge examinations, criminal-background checks, educational credentials, and similar selection tools so long as they are reasonably related to legitimate business objectives.

Federal hiring system. OPM’s new rule translates that legal position into the federal hiring system.

Specifically, the agency is removing language from 5 C.F.R. Part 300 stating that employee-selection procedures must comply with UGESP standards. It is also deleting references to the guidelines from category-rating regulations used in the federal hiring process and from provisions governing Reemployment Priority List candidates. In addition, OPM is removing advisory language in its Federal Equal Opportunity Recruitment Program regulations that instructed agencies to ensure selection procedures were consistent with the guidelines.

Limited. OPM emphasized that the changes are narrow and do not eliminate anti-discrimination obligations. Agencies must still base employment practices on job analyses, ensure that hiring tools are rationally related to job performance, rely on professionally developed assessments, and avoid prohibited discrimination. The rule likewise leaves intact obligations under Title VII, the Rehabilitation Act, the Age Discrimination in Employment Act, veterans’ preference statutes, and federal merit-system principles.

“The rule is limited,” OPM wrote, stressing that it removes UGESP as a binding or advisory standard but does not prohibit the use of professional assessment practices.

Nevertheless, civil rights advocates are likely to view the move as a significant weakening of an important enforcement mechanism.

For decades, disparate-impact analysis has served as a means of identifying barriers that may not be intentional but nevertheless exclude qualified applicants from certain groups. Employment tests, educational requirements, and background-screening practices often came under scrutiny through that framework.

What about AI? Employment and civil rights groups have argued that disparate-impact analysis is especially important for identifying AI-driven bias because such systems often operate as “black boxes,” making discriminatory intent difficult or impossible to establish. A Congressional Research Service report last year noted that changes to disparate-impact enforcement could have significant consequences for regulating AI-based employment decisions.

The administration has taken the opposite view. In April, DOJ intervened in litigation challenging a Colorado law targeting algorithmic discrimination, arguing that requirements aimed at preventing unintentional disparate-impact outcomes violated constitutional equal-protection principles. Assistant Attorney General Harmeet Dhillon said at the time that laws requiring AI firms to account for disparate impacts improperly inject diversity-based considerations into product design.

Supporters of OPM’s rule are therefore likely to view it as a restoration of merit-based hiring focused on qualifications and job performance rather than statistical outcomes. Opponents are expected to argue that it removes a longstanding safeguard against hidden forms of discrimination, particularly as employers increasingly rely on automated decision-making tools.

Comments. Because OPM issued the measure as an interim final rule, it takes effect immediately upon publication while remaining open for public comment for 60 days. The agency said it may confirm, modify, or withdraw the rule after reviewing those comments. The interim final rule is scheduled for publication in the Federal Register on July 31, 2026.

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