In a groundbreaking executive order (EO) issued April 23, President Donald Trump called disparate-impact liability — a common basis for lawsuits under anti-discrimination laws — unlawful. Disparate-impact liability makes employers’ seemingly neutral practices, such as job applicant tests, unlawful if they have a discriminatory effect, even without any discriminatory statements or intent. If this type of liability plummets as a result of this EO, HR professionals could see a dip in litigation against their employers.

In the EO, “Restoring Equality of Opportunity and Meritocracy,” Trump ordered the acting chair of the U.S. Equal Employment Opportunity Commission (EEOC), Andrea Lucas, to assess and “take appropriate action” on all pending investigations, civil suits, or positions taken under every federal civil rights law in the EEOC’s jurisdiction — including Title VII of the Civil Rights Act of 1964 — that rely on a theory of disparate-impact liability.

Trump also ordered Attorney General Pam Bondi to report to him within 30 days of the order:

• All existing regulations, guidance, rules, or orders that impose disparate-impact liability or similar requirements, and detail agency steps for their amendment or repeal, as appropriate under applicable law.
• Other laws or decisions, including at the state level, that impose disparate-impact liability and any appropriate measures to address any constitutional or other legal infirmities.

SHRM Q&A: Anti-Discrimination Laws

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