Executive Order: Restoring Equality Of Opportunity And Meritocracy

Executive Summary

This executive order revokes prior presidential approvals of specific U.S. Department of Justice (DOJ) Title VI regulations that supported the use of disparate-impact liability – a legal theory holding entities accountable for practices that disproportionately affect protected groups, even without discriminatory intent. Citing limited agency resources and the view that disparate-impact liability is unlawful, the order directs federal agencies to deprioritize enforcing such regulations. The U.S. attorney general is instructed to begin repealing or amending related Title VI regulations and report on all federal and state laws relying on disparate-impact theories. Within 45 days, federal agencies must review ongoing investigations and proceedings that involve disparate-impact claims across civil rights, housing, credit and consumer protection laws. Furthermore, the attorney general should assess whether federal authority preempts conflicting state laws and issue guidance to help employers expand access to jobs regardless of educational background.

Policy Actions

• Following the signing of this executive order, presidential approvals of the regulations promulgated under 42 U.S.C. 2000d-1 are revoked:
• • presidential approval of July 25, 1966, of the DOJ Title VI regulations, as applied to 28 C.F.R. 42.104(b)(2) in full
  • presidential approval of July 5, 1973, of the DOJ Title VI regulations (38 Fed. Reg. 17955, FR Doc. 73-13407), as applied to the words "or effect" in both places they appear in 28 C.F.R. 42.104(b)(3), and as applied to 28 C.F.R. 42.104(b)(6)(ii) and 28 C.F.R. 42.104(c)(2) in full
• Given the limited enforcement resources of executive departments and agencies (agencies), unlawfulness of disparate-impact liability and policy of this order, all agencies shall deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability, including but not limited to 42 U.S.C. 2000e-2, 28 C.F.R. 42.104(b)(2)–(3), 28 C.F.R. 42.104(b)(6)(ii) and 28 C.F.R. 42.104(c)(2).
• As delegated by Executive Order 12250 of Nov. 2, 1980 (Leadership and Coordination of Nondiscrimination Laws), the U.S. Attorney General shall 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.
• • Within 30 days of the date of this order, the Attorney General shall report to the president, through the Assistant to the President for Domestic Policy:
  • • 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
    • 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
• Within 45 days of the date of this order, the Attorney General and the chair of the Equal Employment Opportunity Commission (EEOC) shall assess all pending investigations, civil suits or positions taken in ongoing matters under every federal civil rights law within their respective jurisdictions, including Title VII of the Civil Rights Act of 1964, that rely on a theory of disparate-impact liability.
• • Within 45 days of the date of this order, the Attorney General, U.S. Department of Housing and Urban Development (HUD secretary, director of the Consumer Financial Protection Bureau (CFPB), chair of the Federal Trade Commission (FTC) and the heads of other agencies responsible for enforcement of the Equal Credit Opportunity Act, Title VIII of the Civil Rights Act of 1964 (the Fair Housing Act) or laws prohibiting unfair, deceptive or abusive acts or practices shall evaluate all pending proceedings that rely on theories of disparate-impact liability.
• In coordination with other agencies, the Attorney General shall 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.
• • The Attorney General and the EEOC chair shall 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.

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