Trump Administration Takes Aim at Disparate Impact Discrimination

 In an executive order (EO) published Wednesday, the Trump Administration seeks to eliminate the use of disparate impact liability in discrimination cases, calling it part of a “pernicious movement” to move away from equal opportunity and instead pursue “results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement.”  

Why it matters: The Equal Employment Opportunity Commission (EEOC) has historically relied on disparate impact as one of two ways to show discrimination under Title VII of the Civil Right Act of 1964.

• Intentional discrimination: Title VII prohibits “employment practices that discriminate because of” protected traits.

• Disparate impact: The Supreme Court, in a 1971 decision, ruled that Title VII also prohibits practices that are facially neutral but have a disproportionate impact on members of a protect group.

• Codified into law: In 1991, Congress amended Title VII to explicitly codify disparate impact doctrine.

What the EO can do: The EO can only limit the actions of federal agencies.

• The EO directs all agencies to “deprioritize” enforcement of disparate impact liability included in any statutes or regulation. This means that the EEOC will still accept disparate impact charges but will deprioritize investigation and will not initiate litigation based on this theory.

• The EO also requires the EEOC to “assess all pending matters…and take appropriate action.” This means the EEOC will likely withdraw from cases where its involvement is based on a disparate impact case.

What the EO cannot do: The executive order cannot prevent individuals or lawyers from bringing disparate impact cases, nor can it repeal existing law or court decisions. Title VII, including disparate impact analysis, remains the law.

• Litigation based on a disparate impact theory can still be brought by private litigants in court and States can continue to enforce their own anti-discrimination laws.

What’s next: The EO requires the Attorney General and EEOC to issue guidance for employers “regarding appropriate methods to promote equal access to employment, regardless of whether an applicant has a college education, where appropriate,” but gives no timeline for this employer guidance.

• The order says disparate impact “runs contrary to equal protection under the law, and therefore, violates our Constitution” indicating the Administration may attempt to challenge the constitutionality of disparate impact theory in court.

The bottom line: The EO provides clear reinforcement of the Administration’s direction regarding workplace discrimination and DEI, including their interest in evaluating the need for college degrees for some jobs.