05-06-2025
The recently signed “Restoring Equality of Opportunity and Meritocracy” executive order is intended to “eliminate the use of disparate-impact liability” in any way “to the maximum degree possible to avoid violating the Constitution, [f]ederal civil rights laws, and basic American ideals.” Most individuals who bring discrimination claims allege that they were treated differently based on their race, sex, or other protected characteristic. These cases fall under the “disparate treatment” category of discrimination claims. However, sometimes plaintiffs bring another type of discrimination claim, based on a “disparate impact.” These cases allege that the application of a neutral policy or practice disproportionately impacts a particular group, such as women, individuals with disabilities, or specific racial and ethnic groups.
The executive order (dated April 25, 2025) rescinds previous executive approvals of regulations that prohibit disparate impact discrimination under Title VI. Title VI prohibits excluding persons from federally funded programs or activities based on race, color, or national origin. The executive order directs federal agencies to “deprioritize” the enforcement of any statutes and regulations to the extent that they include disparate-impact liability, including Title VI and Title VII. The attorney general will repeal or amend implementing regulations for Title VI as they apply to disparate-impact liability. The EEOC will reassess all pending investigations and civil suits related to Title VII that rely on a disparate-impact theory and to take “appropriate action” based on the new executive order.
Employment attorneys expect the new order to primarily impact ongoing actions at the federal agency level, with the EEOC unlikely to investigate claims based on disparate impact. However, they note that disparate-impact liability remains a part of Title VII in private actions unless Congress amends the statute.