On April 23, 2025, President Trump signed an Executive Order (EO) titled, Restoring Equality of Opportunity and Meritocracy, which addresses disparate impact discrimination.  

Disparate impact discrimination is a form of unlawful conduct that occurs when a seemingly neutral policy or practice unduly disadvantages individuals based on their protected class. It was first recognized as a form of unlawful discrimination in 1971 by the Supreme Court in Griggs v. Duke Power Co. There, the Court construed Title VII to prohibit “not only overt discrimination but also practices that are fair in form, but discriminatory in operation”—that is, practices that have a “disparate impact.” In 1991, Congress explicitly codified the concept of disparate impact into Title VII with the Civil Rights Act of 1991. That remains the law.

The Restoring Equality of Opportunity and Meritocracy EO sets into motion steps to eliminate disparate impact liability for employers. Indeed, its stated purpose is to treat all citizens equally under the law and to combat disparate impact liability. The EO’s end goal is clear: to eliminate the use of disparate-impact liability in all contexts. The EO revokes certain Department of Justice approvals of Title VI (the law that prohibits discrimination based on race, color or national origin in any program or activity that receives federal financial assistance) regulations and directs all agencies to deprioritize enforcement of statutes and regulations to the extent they include disparate-impact liability. It mandates the Attorney General and others to start repealing or amending regulations, guidance, rules, or orders imposing disparate-impact liability or similar requirements, and to address any legal issues (including preemption) with State laws or decisions or any existing consent judgments or permanent injunctions on disparate impact. It also requires them to assess and act on pending investigations, civil suits, or positions relying on disparate-impact liability, and to take appropriate action in various areas such as housing, consumer finance, credit, and trade. Finally, it requires the Attorney General and Employment Opportunity Commission (EEOC) Chair to issue guidance or technical assistance to employers on promoting equal access to employment regardless of college education.

Key Takeaways

Unless and until Congress amends Title VII to repeal the provisions on disparate impact, employers can expect disparate impact theories to continue. While it is unlikely that current EEOC will investigate or make findings of disparate impact, we expect, given the extensive case law, disparate impact to remain an actionable form of discrimination. To that end, employers should be aware that disparate impact likely remains a viable cause of action cases and pay attention to seemingly neutral policies or practices that disproportionately harms a protected class.

The EO can be viewed using this link.  

The White House also issued a Fact Sheet: President Donald J. Trump Signs Landmark Order to Restore Equality of Opportunity and Meritocracy.

The authors of this article and other Nelson Mullins employment attorneys are monitoring developments in this area to provide advice regarding disparate impact liability.