Labor & Employment Law Daily Wrap Up, LITIGATION NEWS, TRENDS—Shortly after EO targeting disparate impact, DOJ stipulates to dismissal of long-running suit against NYC, (May 9, 2025)

By Brandi O. Brown, J.D.

In so doing, it ended over a decade of monitoring that had been put in place to remedy many more decades of disparate impacts on Black and Hispanic firefighter applicants.

In 2007, the federal government brought a disparate impact race discrimination lawsuit against New York City, alleging that the city’s pass/fail and rank-ordering uses of two written applications to screen and select entry-level firefighters had an unlawful discriminatory impact on Black and Hispanic applicants and constituted race discrimination in violation of Title VII. The Vulcan Society (VS) and three individuals intervened, alleging, in addition, a pattern or practice of intentional discrimination based on race, and seeking to represent the interests of a class of Black persons harmed by the city’s practices. A district court in the Eastern District of New York found the city liable for both disparate and intentional discrimination.

In 2011, signaling the beginning of the enforcement phase of the long-running litigation, the court entered an order granting a permanent injunction, appointing a court monitor to oversee compliance, retaining jurisdiction, and assessing costs and fees following a bench trial on the need for and potential scope of injunctive relief. The case remained open, with the monitor providing periodic reports as recently as April 30, 2025.

Second Trump administration changes. On April 23, 2025, however, President Trump issued Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy” in which he took aim at disparate impact liability, describing it as a “key tool” of a “pernicious movement” that seeks to “transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement.” “On a practical level,” he contends in the order, “disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits. This has made it difficult, and in some cases impossible, for employers to use bona fide job-oriented evaluations when recruiting, which prevents job seekers from being paired with jobs to which their skills are most suited—in other words, it deprives them of opportunities for success.”

Revocations. Therefore, according to Trump’s order, two presidential approvals of regulations promulgated under 42 U.S.C. 2000d-1 were being revoked, including (1) the Presidential approval of July 25, 1966, of the Department of Justice Title VI regulations (31 Fed. Reg. 10269), as applied to 28 C.F.R. 42.104(b)(2) in full; and (2) the Presidential approval of July 5, 1973, of the Department of Justice Title VI regulations (38 Fed. Reg. 17955, FR Doc. 73-13407), as applied to the words “or effect” in both places they appear in 28 C.F.R. 42.104(b)(3), and as applied to 28 C.F.R. 42.104(b)(6)(ii) and 28 C.F.R. 42.104(c)(2) in full.

“Deprioritize” and “take appropriate action.” Trump also ordered that “all agencies shall deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability, including but not limited to 42 U.S.C. 2000e-2, 28 C.F.R. 42.104(b)(2)–(3), 28 C.F.R. 42.104(b)(6)(ii), and 28 C.F.R. 42.104(c)(2).” The EO also required that within 45 days, the AG and the EEOC Chair should assess “all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions, including Title VII of the Civil Rights Act of 1964,” [emphasis added] that rely on disparate impact theory and they “shall take appropriate action with respect to such matters consistent with the policy of this order.”

What constitutes “appropriate action” is unclear, as the EEOC is charged with enforcement of Title VII which, by its terms, prohibits disparate impact discrimination. Within 90 days, the EO stated, “all agencies shall evaluate existing consent judgments and permanent injunctions that rely on theories of disparate-impact liability and take appropriate action with respect to such matters consistent with the policy of this order.”

So it came to be that on May 7, just six days after the last order approving payment of fees and expenses to the monitor, the United States filed a stipulation of dismissal with the court, stating that the parties were stipulating to the dismissal with prejudice of the United States’ claims in the suit. The parties also stipulated that no party would seek attorneys’ fees or costs from the United States, nor would the United States seek attorneys’ fees or costs from any other party.

The case is No. 07-CV-2067 (NGG) (RLM).

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