Disparate impact liability, first recognized under Title VII of the Civil Rights Act of 1964 by the U.S. Supreme Court in Griggs v. Duke Power Co. (1971), provides that a facially neutral policy that is applied without any discriminatory intent can still give rise to a claim of discrimination if it has a disproportionate impact on a protected group.
The Executive Order directs various executive departments and agencies to take the following actions:
- All executive departments/agencies are ordered to "deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability";
- The Attorney General is ordered to report "(i) all existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements, and detail agency steps for their amendment or repeal, as appropriate under applicable law; and (ii) other laws or decisions, including at the State level, that impose disparate-impact liability and any appropriate measures to address any constitutional or other legal infirmities" to President Trump;
- The Attorney General is ordered to "initiate appropriate action to repeal or amend the implementing regulations for Title VI of the Civil Rights Act of 1964 for all agencies to the extent they contemplate disparate-impact liability";
- The Attorney General and the Chair of the Equal Employment Opportunity Commission ("EEOC") are directed to "assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions . . . that rely on a theory of disparate-impact liability, and [] take appropriate action" in accordance with the Executive Order;
- All executive agencies are directed to "evaluate existing consent judgments and permanent injunctions that rely on theories of disparate-impact liability and take appropriate action" in accordancewith the Executive Order;
- The Attorney General is ordered to "determine whether any Federal authorities preempt State laws, regulations, policies, or practices that impose disparate-impact liability based on a federally protected characteristic such as race, sex, or age, or whether such laws, regulations, policies, or practices have constitutional infirmities that warrant Federal action, and [] take appropriate measures"; and
- The EEOC Chair and the Attorney General are directed to "jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate."
Key Takeaways
The final scope of this Executive Order is still to be determined. We have previously written about the Trump administration's efforts to make changes to the country's antidiscrimination laws. However, these efforts have faced legal challenges, and it is likely that this Executive Order will also face similar challenges given that some of its directives may be in conflict with established precedent. Further, while executive agencies may be restricted from pursuing claims or taking positions based on theories of disparate impact, the Executive Order does not prevent private individuals from pursuing such claims.
Please visit our Executive Actions Tracker for an up-to-date, comprehensive list, including summaries and in-depth analysis, of the executive orders issued under this administration. We are continuing to update the tracker as new orders are released and new analysis becomes available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
