Lucinda Hobden, Senior Legal Analyst
Lucinda is experienced in employment, higher education, and discrimination litigation. She is currently training for the Bar of England & Wales to build her career in employment and equality law.
On April 23, 2025, President Donald Trump signed an executive order (“EO”) entitled “Restoring Equality of Opportunity and Meritocracy.” The EO takes direct aim at disparate-impact liability, a foundational doctrine in American anti-discrimination law. This article explores the likely impact for employees in the workplace.
What is Disparate Impact?
Disparate impact refers to employment practices that are facially neutral but, when implemented, disproportionately disadvantage members of protected groups, such as racial minorities, women, or older workers. Unlike disparate treatment, disparate impact does not require proof of intentional discrimination.
Under this theory, an employer may be liable if a policy, such as a physical strength test or height requirement, has a statistically significant adverse effect on a protected group and is not justified by business necessity. The doctrine was first recognized in Griggs v. Duke Power Co. (1971), in which the U.S. Supreme Court held that an employer’s requirement that job applicants pass aptitude tests unrelated to the applicant’s ability to perform relevant job duties violated Title VII because it disproportionately disqualified non-white applicants.
Since then, disparate-impact liability has become a cornerstone of federal anti-discrimination enforcement. It is codified in Title VII of the Civil Rights Act of 1964 and incorporated into other federal statutes, including the Fair Housing Act (FHA), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA). The concept is also reflected in many state and local anti-discrimination laws.
Disparate Impact Under Fire
President Trump’s EO declares a sweeping government-wide intention to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” It instructs federal agencies to “deprioritize” enforcement of laws and regulations that include disparate-impact liability and to consider ways to repeal or amend regulations that impose disparate-impact liability under Title VI, which prohibits race, color and national origin discrimination by entities receiving federal financial assistance. It also directs the Attorney General and Chair of the EEOC to assess all pending civil suits, investigations and positions taken based on disparate impact and to take “appropriate action” consistent with the policy of the EO.
Shortly after the EO’s issuance, the Justice Department withdrew from a settlement with an Atlanta bank accused of routinely discouraging black and Latino homebuyers from seeking loans. Around the same time, the Education Department withdrew from a discipline reform agreement with a South Dakota school district where Native American students had been subject to disproportionately high disciplinary rates compared to their white peers.
Implications for Employee Rights
The impact of the EO on discrimination claims brought by private plaintiffs remains to be seen. The EO does not repeal or rewrite Title VII, state and local anti-discrimination statutes, or previous court precedents. Therefore, employees may still bring private lawsuits challenging discriminatory effects under Title VII, as well as under applicable state or local laws, irrespective of the position of government agencies.
That said, by stepping back from enforcement, the federal government has reduced its role in identifying and remedying systemic barriers in employment. The move may also discourage private sector employers from proactively reviewing their policies for discriminatory impact, potentially reinforcing structural inequalities in hiring, promotion, and workplace discipline.
For workers facing institutional discrimination, the burden of enforcement may now fall more heavily on private litigation. Individuals concerned about potentially discriminatory practices in their workplace should seek legal advice to understand their rights and options.
Please note that the above does not constitute legal advice.
Every workplace is unique, and the recent executive order limiting disparate-impact liability may raise questions about your rights. This article is for general information only and does not constitute legal advice. If you are worried about how these developments could affect you, we encourage you to reach out. We provide a no-cost initial consultation to discuss your circumstances and explain how we may be able to assist. Legal advice is only given once we are formally engaged.
