Trump Executive Order Rolls Back Disparate-Impact Enforcement
Written By:
Kenneth A. Rosenberg
Fox Rothschild
President Trump has issued an executive order aimed at significantly reducing the use of disparate-impact analysis by federal agencies when enforcing anti-discrimination laws.
Titled “Restoring Equality of Opportunity and Meritocracy,” the order declares that disparate-impact liability creates a near insurmountable presumption of unlawful discrimination whenever differences in outcomes appear among races, sexes or other protected groups, even absent any discriminatory policy, practice or intent.
The order asserts that disparate-impact liability pressures individuals and businesses to consider race and engage in racial balancing to avoid crippling legal liability. It further states that this approach undermines national values, runs contrary to the principle of equal protection under the law and violates the U.S. Constitution. As a result, the order establishes that it is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum extent possible.
Key Provisions of the Executive Order
To accomplish its goals, the order:
- Revokes certain Presidential approvals of regulations promulgated under Title VI of the Civil Rights Act of 1964.
- Orders all agencies to deprioritize enforcement of statutes and regulations that incorporate disparate-impact liability, including but not limited to Title VII of the Civil Rights Act of 1964 and related regulations.
- Directs the Attorney General to initiate appropriate action to repeal or amend implementing regulations for Title VI that contemplate disparate-impact liability.
- Requires the Attorney General, in coordination with agency heads, to report to the Assistant to the President for Domestic Policy within 30 days:
- Listing all existing regulations, guidance, rules and orders that impose disparate-impact liability, along with steps for their repeal or amendment.
- Identifying other laws or decisions, including at the state level, that impose disparate-impact liability, and suggesting measures to address any constitutional or legal infirmities.
- Directs the Attorney General and the Chair of the Equal Employment Opportunity Commission (EEOC), within 45 days, to assess all pending investigations, civil suits or agency positions under federal civil rights laws, including Title VII, that rely on disparate-impact theories, and to take appropriate action.
- Orders all federal agencies, within 90 days, to evaluate existing consent judgments and permanent injunctions based on disparate-impact theories and determine appropriate actions.
- Instructs the Attorney General, working with other agencies, to evaluate whether federal law preempts state laws, regulations or policies imposing disparate-impact liability.
- Directs the Attorney General and EEOC Chair to jointly issue guidance or technical assistance to employers on promoting equal access to employment, regardless of college education status, where appropriate.
What This Means for Employers and Businesses
The executive order is likely to be welcome news for employers and businesses. For the foreseeable future, and likely through 2029 or beyond, federal agencies are expected to:
- Substantially scale back investigations and lawsuits based on disparate-impact theories in employment, fair housing, transportation and education.
- Review and potentially discontinue enforcement of existing settlements and conciliation agreements that rely on disparate-impact liability.
- Explore possible preemption of state laws that allow disparate-impact claims.
However, employers must still exercise caution. Disparate-treatment claims, which focus on intentional discrimination, remain fully enforceable under Title VII and other civil rights laws. Employers should also be mindful that private plaintiffs and state civil rights agencies may continue to bring disparate-impact claims, at least until federal preemption issues are resolved.
As a result, employers are advised to continue monitoring their policies and practices for adverse impact. Running adverse impact analyses remains a prudent step to mitigate litigation risk under existing state laws and federal disparate-treatment standards.
Broader Context
This executive order continues the Trump administration’s broader efforts to reshape federal policy and enforcement relating to affirmative action, DEI (diversity, equity and inclusion) and civil rights laws generally.
Businesses and employers with questions about compliance should contact experienced counsel to avoid costly missteps.
For more information on this and related issues, contact Kenneth Rosenberg at krosenberg@foxrothschild.com or another member of the firm's Federal Government Contracts or Labor & Employment teams.
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