Labor & Employment Law Daily Wrap Up, WHITE HOUSE NEWS—Trump takes aim at bedrock anti-discrimination legal theory and enforcement tool, claims it causes ‘potentially crippling legal liability’, (Apr 24, 2025)

By Brandi O. Brown, J.D.

Under his instruction, federal agencies have been told to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability[.]”

On Wednesday, President Trump issued another flurry of executive orders. Included among those was an order entitled “Restoring Equality of Opportunity and Meritocracy” in which he took aim at disparate impact liability, which he describes 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.” He describes this “key tool” as one “which holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy or practice or discriminatory intent involved, and even if everyone has an equal opportunity to succeed.”

“On a practical level,” he contends, “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 are 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.

Trump has also ordered the following:

Deprioritization. The order requires 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).”

Repeal or amendment of Title VI regs. It also requires that “the Attorney General shall initiate appropriate action to repeal or amend the implementing regulations for Title VI of the Civil Rights Act of 1964 for all agencies to the extent they contemplate disparate-impact liability.”

Other amendments or repeals. It orders that within 30 days, the AG, in coordination with all other agency heads, “shall” report: (1) all existing regulations, guidance, rules, or orders imposing disparate-impact liability or similar requirements, and detail agency steps for amendment or repeal, as appropriate under applicable law; and (2) other laws or decisions, including those at the state level, that impose disparate-impact liability and “any appropriate measures to address any constitutional or other legal infirmities.” [emphasis added]

EEOC and Title VII. It requires 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.

Other agencies. The order also states that within 45 days, the AG, along with HUD, CFPB, CFTC, and other agency heads should similarly evaluate pending proceedings relying on the liability theory and “take appropriate action.”

Consent judgments and injunctions. It instructs that within 90 days, “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.”

Preemption of state laws imposing liability. It also instructs the AG to determine “whether any Federal authorities preempt State laws, regulations, policies, or practices that impose disparate-impact liability based on a federally protected characteristic such as race, sex, or age, or whether such laws, regulations, policies, or practices have constitutional infirmities that warrant Federal action.” It instructs that they should take appropriate measures consistent with the policy of this order.

Guidance on college education requirements. Finally, it instructs the AG and EEOC Chair to “jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate.”

The White House also released a fact sheet on the “landmark order.”

Responses coming in. “This executive order instructs the government to stop enforcing key civil rights protections—in the workplace, at schools, and in all aspects of our society—and to rewrite regulations that have protected the rights of all people for decades,” said Fatima Goss Graves, president and CEO of the National Women’s Law Center. Graves added that “In less than 100 days, the Trump administration has swung a sledgehammer at the very foundations of our democracy – attempting to clear a path for a government ruled not by and for the people, but by and for one man.”

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