We all know what “intentional” discrimination means. But what about facially non-discriminatory policies or practices that have a discriminatory effect? The U.S. Supreme Court invented a then-novel, and still somewhat controversial, theory to answer that question in 1971: the so-called “disparate impact” theory of discrimination. Under it, an employer might have a perfectly legal policy with no intentionally discriminatory effect, but if applying it disparately impacts a protected group, federal anti-discrimination law may be violated.
As with so many things Trumpian, the President (or his legal policymakers) think that it may be time to revisit a 54-year-old legal theory, On April 23, 2025, President Trump issued his latest Executive Order (“EO”) entitled “Restoring Equality of Opportunity and Meritocracy,” impacting employers as it seeks to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”
Disparate-impact liability refers to the idea that a policy or practice may be facially neutral and applied without discriminatory intent but if it has an adverse impact on a protected class, it can still serve as the basis for a claim of discrimination. The Supreme Court in Griggs v. Duke Power first recognized the disparate-impact theory as a basis for liability under Title VII of the Civil Rights Act of 1964 (“Title VII”). It was then codified under the 1991 amendments to Title VII.
This new EO is the latest action as part of the Trump...
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