Disparate Impact Discrimination and Trump’s Newest Executive Order
It is well settled that employers cannot intentionally discriminate against job candidates or employees based on their membership in a Title VII protected class. Title VII of the Civil Rights Act of 1964 prohibits discrimination based upon national origin, race, color, religion, and gender. It also protects against retaliation for opposing discriminatory practices or participating in investigations. Additionally, the law mandates that employers treat women affected by pregnancy, childbirth, or related medical conditions the same as other employees with similar abilities or disabilities.
For almost 35 years, the law has been interpreted to mean that employers could be held liable for policies and practices that - although not designed to be intentionally discriminatory - in fact did have a “disparate impact” upon a group of job applicants or employees based upon their membership in a Title VII protected class. Griggs v. Duke Power Co., 401 U.S. 424 (1971).
On April 23, 2025, President Trump issued an executive order that could change the law to eliminate the use of disparate impact in all contexts to the maximum degree legally possible.
Under current law, a worker doesn’t need to show that the employer intentionally discriminated against them, just that the practice had an adverse or disparate impact upon them.
Employers can defend their employment practices by showing a legitimate, nondiscriminatory reason - referred to as a “bona fide occupational qualification” - for the policy or practice that is consistent with business necessity. For example, to justify hiring only men for a job that requires heavy lifting, an employer would have to be able to show that this requirement is necessary to perform the job, and that only men can do the heavy lifting required.
While the executive order does not change federal statutes or Supreme Court precedent, it has the most impact on federal agency priorities and enforcement activity. The Equal Employment Opportunity Commission (EEOC) has already removed disparate impact information from its website, and it is expected that the EEOC will not be investigating disparate impact claims or engaging in related enforcement activities.
In a previous blog post, I wrote about how in 2023, during the Biden administration, the EEOC was going to look for possible Title VII violations, including disparate impact, when employers use AI to assist with hiring or employment-related actions. The EEOC has now also removed this guidance from the EEOC’s website.
More than ever, employees need to seek advice from their own employment attorneys about how to navigate the ever-changing landscape of their workplaces. If you or someone you know is seeing warning signs at work, we recommend they seek legal help before they go to Human Resources or otherwise make any claims so that any claim they do raise is done within the construct of the applicable existing laws.