President Trump Issues Executive Order Deprioritizing Disparate Impact Theory of Discrimination

On April 23, 2025, President Trump signed an executive order, Restoring Equality of Opportunity and Meritocracy, declaring it the policy of the United States “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the constitution, Federal civil rights laws, and basic American ideals.” The order reasons that “disparate impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.”

The order goes on to direct federal agencies to “deprioritize enforcement of all statutes and regulations to the extent that they include disparate-impact liability” and, within 90 days, “evaluate existing consent judgments and permanent injunctions that rely on theories of disparate-impact liability and take appropriate action with respect to such matters consistent with the policy of this order.” It specifically directs the Attorney General and the Chair of the Equal Employment Opportunity Commission (“EEOC”) to assess pending investigations, civil suits, and positions that rely on a theory of disparate impact liability—including those under Title VII of the Civil Rights Act of 1964 (“Title VII”)—and “take appropriate action” “consistent with the policy of this order.” The order also directs the Attorney General, in coordination with other agencies, to evaluate whether any State laws, regulations, or policies that impose disparate impact liability based on a federally protected characteristic are preempted by any Federal authorities and “take appropriate measures” to the extent those laws, regulations, or policies “have constitutional infirmities.”

Notably, unlike Executive Order 14168, this executive order does not direct that steps be taken to amend Title VII (or other federal anti-discrimination statutes) to expressly eliminate disparate impact liability. The Supreme Court recognized disparate impact liability under Title VII in 1971 in Griggs v. Duke Power Company, and federal courts have consistently followed suit over the last fifty years. Unless Title VII is revised, or there is a significant shift in Supreme Court and federal court precedent interpreting the existing statute, private employers are still susceptible to liability under both disparate impact and disparate treatment theories. And, of course, employers should expect plaintiffs to continue to rely upon statistical evidence under both theories of discrimination. Thus, while employers can expect the EEOC will not pursue investigations or charges on disparate impact theory while the executive order is in effect, employers will – absent revisions to Title VII or a Supreme Court decision overturning Griggs – continue to face liability under the disparate impact theory.