In his administration’s continued quest to “encourage meritocracy and a colorblind society” and oppose “race- or sex-based favoritism,” President Trump issued a new Executive Order on April 23, 2025, titled “Restoring Equality of Opportunity and Meritocracy.” The order specifically targets disparate impact liability.
Background on Title VII Disparate Impact Liability
Title VII of the Civil Rights Act of 1964 prohibits two kinds of discrimination—disparate treatment and disparate impact. Disparate treatment includes an employer’s failure or refusal to hire, discharging an individual, or otherwise discriminating against an individual with respect to the terms and conditions of employment because of that person’s race, color, religion, sex, or national origin. In other words, a disparate treatment claim involves some type of alleged discriminatory intent or animus.
On the other hand, disparate impact includes an employer’s limiting, segregating, or classifying employees or applicants in a way that would tend to deprive any individual of employment opportunities or adversely affect their status as an employee because of race, color, religion, sex, or national origin. To prove a disparate impact claim, in general, the complaining party must demonstrate that the employer doesn’t have a job-related reason that is consistent with business necessity for the challenged practice.
Disparate impact liability tends to arise when a facially neutral policy or practice has a disproportionately negative effect on a protected group—even when the policy or practice wasn’t intended to be discriminatory. For example, think of a hiring requirement that has nothing to do with race but, in practice, results in white males getting jobs disproportionately over and above Black females. Or a workplace policy that is facially neutral but ends up disproportionately affecting Hispanic workers.
Highlights From the Order
In the order, Trump challenges disparate impact liability, stating that a “near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.”
To resolve this, President Trump states that it is now the policy of the United States to eliminate the use of disparate impact liability in all contexts to the maximum degree possible. He seeks to revoke prior presidential approvals of regulations implementing disparate impact rules, and he orders executive agencies such as the Equal Employment Opportunity Commission (EEOC) to “deprioritize” enforcement of disparate impact claims. The EEOC chair has 45 days to assess any pending investigations and lawsuits related to disparate impact liability under Title VII and take action to comply with the order.
What’s the Takeaway?
- The order doesn’t change Title VII, nor does it alter U.S. Supreme Court precedent regarding disparate impact theories or liability. However, it does require the EEOC to discontinue any investigations or enforcement efforts related to disparate impact claims. To that end, the EEOC has already removed its previous disparate impact guidance from its official government website.
- Courts will likely continue to look at the statutory language of Title VII and legal precedent when deciding disparate impact claims. However, the order may provide additional arguments or defenses for employers to use against such claims, and we may also see legal challenges related to the order make their way through the courts.
- As with all recent employment-related Executive Orders, the current administration’s stated emphasis is on prohibiting discrimination based on protected status, regardless of which employees are affected. The EEOC’s position is that the civil rights laws apply to all races and sexes—not just minorities—such that Caucasians, males, and heterosexuals are entitled to equal protection under the law to the same degree as racial minorities, women, and LGBTQ+ individuals.
Stay informed
Contact your McAfee & Taft labor and employment group attorney should you have any questions about this latest order. As always, we will continue to monitor developments related to employment laws and the EEOC’s priorities.
Paige Good is an attorney with McAfee & Taft in Oklahoma City and can be reached at paige.good@mcafeetaft.com.