Executive Order Seeks to Eliminate Disparate Impact Discrimination Claims

By Jill Kahn Marshall and Anna Beckelman

On April 23, 2025, President Donald Trump signed an executive order titled “Restoring Equality of Opportunity and Meritocracy” which aims to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” The order seeks to alter the implementation of a number of federal antidiscrimination laws, including those focusing on employment discrimination.

Unlike a disparate treatment claim, in which an individual employee alleges she was treated differently from other workers because she was a member of a protected class, disparate impact discrimination involves facially neutral employment policies or practices that disproportionately impact members of a protected class. The Supreme Court first recognized disparate impact discrimination in Griggs v. Duke Power Co., 401 U.S. 424 (1971), when it found that the requirement to pass an aptitude test and possess a high school diploma made African Americans less likely to be hired or promoted at a power plant. Since Griggs, the prohibition of disparate impact discrimination has been codified into law with the 1991 amendments to the Civil Rights Act, as well as in many state and local antidiscrimination statutes. Disparate impact claims arise with respect to practices that are widespread throughout a company, such as utilizing discriminatory hiring criteria or implementing reductions-in-force in a way that negatively impacts a particular group. Unlike with disparate treatment claims, disparate impact claims do not require a showing of discriminatory intent. Disparate impact claims are an important tool in forcing employers to look at their employment practices holistically, and to consider whether policies may be unnecessarily disadvantaging certain groups or propping up others. Employers can defend these policies by showing that they are “”job related for the position in question” and “consistent with business necessity.”

President Trump’s order instructs that federal agencies “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability,” including Title VII, and that the Attorney General and the Chair of the Equality Employment Opportunity Commission (EEOC) “assess all pending investigations, civil suits, and positions in ongoing matters […] that rely on a theory of disparate-impact liability […] and shall take appropriate action with respect to such matters consistent with the policy of this order.” The order also directs the Attorney General to assess whether state laws should be preempted by the change.

It is anticipated that in light of the executive order, the EEOC will dismiss, close, or narrow litigations, investigations, and other matters based on the disparate impact theory of liability, and that it will no longer pursue matters based on disparate impact in future administrative proceedings. It remains unclear, however, when and how the order will affect discrimination claims brought by private plaintiffs, as disparate impact liability is still codified in Title VII and in a number of state and local antidiscrimination laws. Furthermore, courts have upheld disparate impact liability as a legitimate discrimination theory for more than five decades. The recent executive order does not change either the statutes or court precedents, and such change would likely require legislative or judicial action. Employers would therefore be prudent to continue to be cognizant of any policies which may result in a disparate impact amongst protected groups. Employees looking to bring such claims should be aware of the fluctuating legal landscape, particularly within the EEOC.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Jill Kahn Marshall, who counsels individuals and corporations in the areas of employment law, litigation and dispute resolution, and healthcare. Ms. Marshall is admitted to practice law in New York and Massachusetts, as well as the District Courts for Massachusetts and the Southern and Eastern Districts of New York.