In a sweeping policy change that fundamentally alters how federal civil rights laws are enforced, President Donald Trump signed an executive order on April 23 titled "Restoring Equality of Opportunity and Meritocracy." The order directs all federal agencies to "deprioritize enforcement" of disparate impact liability under various anti-discrimination laws, including Title VII of the Civil Rights Act of 1964.
Disparate impact liability, a legal concept established by the Supreme Court in its unanimous 1971 Griggs v. Duke Power Co. decision and later codified in the Civil Rights Act of 1991, allows courts to find discrimination even when no explicit discriminatory intent exists. Under this theory, policies or practices that appear neutral on their face but disproportionately affect protected groups can be deemed discriminatory unless an entity can demonstrate legitimate business necessity.
The executive order characterizes disparate impact as creating "a near insurmountable presumption of unlawful discrimination" when outcomes differ among racial or other protected groups, even without discriminatory intent. It argues that this standard has "hindered businesses from making hiring and other employment decisions based on merit and skill" due to fears of lawsuits over statistical disparities.
Significant Changes to Federal Enforcement
The order implements several specific directives that will reshape federal civil rights enforcement. It instructs the Attorney General to review and report on all existing regulations, guidance, and orders that impose disparate impact liability, detailing steps for their amendment or repeal. Within 45 days, the Justice Department and Equal Employment Opportunity Commission (EEOC) must assess all pending investigations and lawsuits that rely on disparate impact theory and "take appropriate action" aligned with the new policy.
Additionally, the order directs the Attorney General to repeal or amend Title VI regulations that contemplate disparate impact liability and to determine whether federal authorities might preempt state laws that impose similar liability. This could potentially affect numerous state anti-discrimination laws.
As noted by legal experts, this executive order cannot eliminate the disparate impact provisions codified in federal statutes by Congress. Private litigation can still proceed under these theories, as the Civil Rights Act of 1991 specifically incorporated disparate impact liability into Title VII. However, federal agencies will no longer initiate new investigations or lawsuits based on disparate impact during the remainder of the Trump administration.
"A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes."
Business Impact and Employer Practices
For employers and businesses, the change means the EEOC is unlikely to investigate discrimination charges based on disparate impact or file new cases alleging such claims. This represents a significant shift in enforcement posture, as disparate impact claims have previously influenced many business practices, from pre-employment testing to hiring procedures.
Proponents of the change argue it will allow employers to implement merit-based policies without fear of liability for statistical disparities. According to legal observers, the executive order may encourage businesses to reconsider hiring practices that were previously adjusted to avoid disparate impact claims, such as the use of aptitude tests or skills assessments that might produce statistical disparities among different demographic groups.
One practical effect highlighted by multiple legal analysts is that the order could reduce pressure on businesses to require college degrees as a proxy for skills, potentially opening more opportunities for qualified candidates without higher education credentials. The order specifically directs the Attorney General and EEOC Chair to issue guidance to employers regarding "appropriate methods to promote equal access to employment regardless of whether an applicant has a college education."
Contrasting Perspectives on the Change
Reactions to the executive order have been sharply divided along ideological lines. Supporters view it as restoring the original intent of civil rights laws to ensure equal opportunity rather than mandate equal outcomes. They contend that disparate impact liability has forced employers into de facto racial balancing to avoid litigation, contradicting the principle of individual merit.
Critics, however, warn that eliminating disparate impact enforcement removes a crucial tool for addressing subtle but pervasive forms of discrimination. Jenny Yang, who led the EEOC under President Obama, characterized the move as setting civil rights enforcement "back decades." Civil rights organizations have expressed concern that without disparate impact liability, discriminatory practices could go unchallenged even when they produce clear patterns of exclusion.
The executive order has already prompted legal challenges, with several civil rights organizations preparing litigation arguing that the administration cannot unilaterally abandon congressionally mandated enforcement mechanisms. As with many Trump administration initiatives, the ultimate impact may depend on the outcome of these legal battles and future elections.
"Disparate impact is a theory of liability under civil rights laws in which a facially neutral practice has a disproportionately adverse effect on a protected class of individuals." Littler
Historical Context and Future Implications
The concept of disparate impact has been a cornerstone of civil rights enforcement for over five decades. The Supreme Court's unanimous Griggs decision established that Title VII "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Congress reinforced this interpretation when it amended Title VII in 1991 to explicitly include disparate impact liability.
Legal experts note that while the executive order significantly alters federal enforcement practices, it does not change the underlying statutes or Supreme Court precedents recognizing disparate impact claims. Private plaintiffs can still bring such cases, and a future administration could reverse the policy.
The order represents the latest in a series of Trump administration actions aimed at reshaping civil rights enforcement. Previously, the administration had limited the use of disparate impact theory in housing discrimination cases and education policy. Civil rights advocates view these changes as part of a broader pattern of rolling back protections for marginalized groups.
As federal agencies begin implementing the executive order in the coming weeks, its practical impacts will become clearer. What remains certain is that this fundamental shift in civil rights enforcement philosophy will continue to generate intense debate about the proper role of government in addressing systemic inequality and discrimination in American society.
Sources: This article draws on information from multiple sources including the official White House executive order "Restoring Equality of Opportunity and Meritocracy," legal analyses from Holland & Knight, Littler Mendelson P.C., and other law firms, reporting from The Washington Post and other news outlets, and historical context from Supreme Court decisions including Griggs v. Duke Power Co. Information reflects developments as of April 2025.
