President Donald Trump’s rollback of disparate impact enforcement will pose compliance difficulties for employers, as state laws and federal civil rights statutes currently incorporate the theory on unintentional bias.

Trump’s recent executive order told the US Justice Department and the Equal Employment Opportunity Commission to cut disparate impact liability theory to the “maximum degree possible” when enforcing civil rights laws and reconsider the government’s positions in pending litigation.

Disparate impact, codified in 1991 amendments to Title VII of the 1964 Civil Rights Act, covers discrimination resulting from neutrally applied workplace practices that disproportionately affect individuals based on their race, sex, or other protected characteristics.

Eliminating it from federal civil rights law enforcement creates a fragmented legal environment, particularly for multistate employers, as states from California to Texas have codified the doctrine, and private litigation is still viable nationwide. The April 23 Trump EO’s request that the DOJ explore whether it can preempt state law on disparate impact only adds to the uncertainty.

Subjecting employers to conflicting sets of compliance rules “would be hard to navigate,” said Joseph Seiner, a law professor at the University of South Carolina and former EEOC appellate attorney.

The administration’s...

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