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Quick Hits
- President Trump signed an executive order aimed at ending the legal theory of disparate impact discrimination by deprioritizing its enforcement within federal regulations, including Title VII of the Civil Rights Act of 1964.
- The move is part of a broader effort by the Trump administration to reshape federal antidiscrimination and DEI policies and could lead to potential legal disputes.
The EO, titled “Restoring Equality of Opportunity and Meritocracy,” effectively deprioritizes disparate impact, calls for technical assistance to be issued by the U.S. Equal Employment Opportunity Commission (EEOC), and questions disparate impact regulations under Title VII of the Civil Rights Act of 1964 and other laws that implicate disparate impact causes of action and liability.
Disparate impact refers to the legal doctrine whereby employers or other entities may be held accountable for a specific employment practice or policy that, while neutral on its face and not intended to discriminate, causes a substantial adverse impact to a protected group (such as sex) and cannot be justified as serving a legitimate business goal for the employer.
Disparate impact liability has been a key component of federal antidiscrimination law and has been upheld in multiple landmark court cases and codified in Title VII as part of the Civil Rights Act of 1991 (42 U.S.C. 200e-2(K)). However, the EO states it is now “the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.”
Specifically, the EO orders “all agencies” to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” including Title VII. The order directs the Attorney General and the EEOC chair to “assess pending investigations, civil suits, or positions taken in ongoing matters” that “rely on a theory of disparate-impact liability.”
The EO further revokes “Presidential approval” of key regulations carrying out Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance.
Next Steps
The EO is the latest related to antidiscrimination and diversity, equity, and inclusion (DEI) policies, as the Trump administration seeks to refocus federal policy and eliminate “unlawful” racial preferences. However, the policies have faced over 200 legal challenges, and some aspects of the orders have been enjoined. It is likely that the latest EO could similarly be challenged. Further, while the EO seeks to stop the federal agencies from pursuing claims or taking positions that rely on theories of disparate impact, private individuals may still pursue such claims.
This article and more information on how the Trump administration’s actions impact employers can be found on Ogletree Deakins’ New Administration Resource Hub.
Ogletree Deakins will continue to monitor developments and will provide updates on the Diversity, Equity, and Inclusion Compliance, Employment Law, Government Contracting and Reporting, and Governmental Affairs blogs as additional information becomes available.
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