25-04-2025
What Trump's order on ‘disparate impact' means for civil rights
President Donald Trump on Wednesday moved to dislodge a cornerstone of modern civil rights law through a sweeping executive order that strips the federal government of the key tool it used to enforce antidiscrimination laws — a concept known as disparate-impact liability.
The order has alarmed civil rights advocates, who warn it could make it harder to shield people from exclusionary policies in areas like housing, employment, education and criminal justice.
'This effort by the administration to remove this tool sets us back decades,' said Jenny Yang, who chaired the Equal Employment Opportunity Commission under President Barack Obama and led the Office of Federal Contract Compliance Programs under President Joe Biden.
Trump's order directs federal agencies to 'deprioritize enforcement' of statutes and regulations that include disparate-impact liability, which has long enabled courts to stop policies and practices that unfairly exclude people on the basis of protected characteristics such as race, gender and disability. The order also instructs the U.S. attorney general to repeal key components of the Civil Rights Act of 1964 that bar any program receiving federal financial support from discrimination based on 'race, color, or national origin.'
The Trump administration argues that disparate-impact liability has handcuffed employers, requiring them to consider race and 'racial balancing' to avoid legal liability, which they say is a threat to meritocracy.
'It not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution,' the order reads.
Derek Black, who directs the Constitutional Law Center at the University of South Carolina, said the administration was misstating the law.
'If it were true that disparate-impact liability creates 'a near insurmountable presumption of unlawful discrimination,' we might have rid the country of disparities long ago,' he wrote on X.
In Yang's view, the past several decades show how civil rights enforcement has shaped workplaces for the better. The concept of disparate impact, she said, prevents employers from excluding qualified candidates because of their race, gender or another protected characteristic.
'It really reinforced merit-based hiring, so it's quite the opposite of requiring racial balancing,' Yang said.
In 1971, the U.S. Supreme Court set precedent on this topic when it unanimously ruled in Griggs v. Duke Power Co. that the company could not use arbitrary tests or requirements in hiring and promotion if it couldn't prove they served a genuine business need. At the time, Duke Power required a high school diploma and aptitude test to get a promotion — a rule that was not job-related and disproportionately affected Black workers who had less access to quality schools and lower diploma attainment because of segregation.
Crucially, the court found that even if the company was not purposefully trying to discriminate based on race, if the policies had a discriminatory effect, they were illegal.
After Griggs, companies had to consider a wider pool of applicants, Yang said. That eliminated requirements like nonessential widespread height and weight specifications, which disproportionately excluded women, Latinos and some Asians.
While at the Equal Employment Opportunity Commission, Yang read a report that found companies were missing out on hidden talent because their application-analysis algorithms overlooked prospective workers who had large breaks in their employment history — a bias that could impact women with children, caregivers, retirees who wanted to rejoin the workforce or people with disabilities.
'There's been an effort to say that with discrimination, the only kind of harm we care about is the egregious, smoking-gun evidence of animus or harassment, or where somebody is bigoted,' Yang said. 'But there is often very significant harm to individuals from organizational practices that are discriminatory, yet very difficult to prove.'
Yang said while Trump's executive order creates uncertainty, it doesn't stop private individuals from suing over workplace and other kinds of discrimination. States and localities are also strengthening their nondiscrimination laws, she said.
The executive order charts a new course for federal agencies, de-emphasizing the enforcement of antidiscrimination rules. As Trump targets parts of the Civil Rights Act, his administration will have the burden of demonstrating how the law is unconstitutional, Yang said.
'He can't just vaguely disregard Congress's mandate as also interpreted by the Supreme Court,' she said.
