The Trump Administration issued its latest Executive Order entitled Restoring Equality of Opportunity and Meritocracy (the "EO") on April 23, 2025. The EO focuses on "disparate impact" discrimination and is the latest in a string of orders impacting the workplace - the effects of which American workplaces are still digesting (see here, here, and here for a few recent examples).
As described in the White House's accompanying fact sheet, the EO "eliminates the use of disparate-impact liability in various contexts to ensure equal treatment under the law." The EO is premised on the Administration's position that "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, which in turn means that employers cannot act in the best interests of the job applicant, the employer, and the American public." Based on this belief, the EO then takes numerous actions purporting to dismantle the disparate impact liability framework in various settings.
What is Disparate Impact Liability?
Disparate impact can be utilized as an alternative standard for alleging and ultimately proving discrimination in the workplace and in other anti-discrimination contexts. An employee pursuing a "discrimination by disparate impact" claim must show the challenged employment action had a disproportionate effect on members of a protected class (e.g., gender, race, or other Title VII protected categories) without justification rather than having to show that the employer acted with a discriminatory intent or motive.
The U.S. Supreme Court first recognized the concept of disparate impact in the employment discrimination context in its 1971 Griggs v. Duke Power Co. decision, 401 U.S. 424. In Griggs, the Court invalidated an employer's requirement that job applicants either have a high school diploma or pass an "intelligence" test to meet a position's minimum standards, because that requirement served to disproportionately eliminate Black candidates from consideration without justifiable basis. The Griggs Court held Title VII requires the "elimination of artificial, arbitrary, and unnecessary barriers to employment that operate invidiously to discriminate on the basis of race" and other protected categories, and announced that the then-nascent Title VII statute...
