Over the past year and a half, the federal government has pulled back its disparate-impact regulations and enforcement while confirming that employers should retain the data upon which disparate-impact analysis depends. The data obligations and uses were not retired when the theory lost favor with the federal government.

Instead, the federal government has now repurposed data (through substantial requests) to show intentional discrimination on an individual or systemic basis, which points toward even more serious allegations and enforcement activity.

Quick Hits

• The federal government’s shift in enforcement priorities does not amend Title VII, and disparate impact remains actionable under federal and state laws, particularly for private plaintiffs and state regulators.
• In rescinding the disparate-impact provisions of federal Title VI regulations, federal agencies expressly kept the data-retention expectation and stated that the data can still prove intentional discrimination.
• The same statistics that once supported a disparate-impact claim are now positioned as evidence of intent—the discrimination theory the EEOC says it is prioritizing.

Disparate Treatment, Disparate Impact, and Adverse Impact Analyses

Disparate treatment and disparate impact are the two theories of discrimination under Title VII of the Civil Rights Act of 1964. Disparate treatment is intentional: an employer treats a person less favorably because of a protected characteristic. Disparate treatment is...

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