Trump Executive Order Takes Aim at Disparate-Impact Liability

On April 23, President Donald Trump issued Executive Order 14281 (EO), “Restoring Equality of Opportunity and Meritocracy,” 90 FR 17537, 2025 WL 1207532. The EO takes aim at disparate-impact liability, which the EO says “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.”

According to the Supreme Court of Appeals of West Virginia, “[d]isparate impact theory does not require proof of discriminatory motive. To prevail under disparate impact, the plaintiff must show that the defendant’s facially neutral policy has a disproportionate adverse impact on the basis of the protected trait.” W. Virginia Univ./W. Virginia Bd. of Regents v. Decker, 191 W.Va. 567, 447 S.E.2d 259, 264 (1994) (citing Guyan Valley Hosp., Inc. v. West Virginia Hum. Rts. Comm’n, 181 W.Va. 251, 253, n. 4, 382 S.E.2d 88, 90 (1989), overruled by W. Virginia Univ./W. Virginia Bd. of Regents v. Decker, 191 W. Va. 567, 447 S.E.2d 259 (1994)) (additional citations omitted). The disparate-impact discrimination theory was first recognized by the United States Supreme Court in Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), when analyzing Title VII of the Civil Rights Act of 1964. Disparate-impact claims have thereafter been allowed under the Age Discrimination in Employment Act (ADEA), the Fair Housing Act (FHA), and the Americans with Disabilities Act (ADA).

In conjunction with the EO, The White House released a “Fact Sheet” emphasizing various points, including, “The Order revokes presidential actions that approved of disparate-impact liability and sets in motion broader reform.” Stating that “[i]t is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible,” the EO:

• Revokes presidential approval of 28 C.F.R. 42.104(b)(2) [The Department of Justice regulation pertaining to disparate impact in the selection of individuals participating in federally assisted programs]
• Revokes presidential approval of the words “or effect” in 28 C.F.R. 42.104(b)(3) and as applied in 28 C.F.R. 42.104(b)(6) [The Department of Justice regulation pertaining to the use of affirmative action to overcome the effects of discrimination with regard to recipients of federally assisted programs]
• Revokes presidential approval of 28 C.F.R. 42.104(c)(2) [The Department of Justice regulation pertaining to hiring practices of recipients of federal funds]
• Orders federal agencies to “deprioritize enforcement” of federal statutes and regulations to the extent they include disparate-impact liability
• Orders the U.S. attorney general to initiate action to repeal or amend the implementing regulations for Title VI of the Civil Rights Act of 1964 for all agencies and, within 30 days, to report to the president regulation, guidance, rules, or orders to be repealed or amended and other laws “that impose disparate-impact liability” and “measures to address any constitutional or legal infirmities” they may have
• Orders the U.S. attorney general and the chair of the Equal Employment Opportunity Commission (EEOC) to “assess” pending investigations relying upon the disparate-impact theory and to “take appropriate action…consistent with the policy of this order”
• Within 45 days, orders the U.S. attorney general and appropriate federal officials to “evaluate” pending proceedings regarding unfair, deceptive, or abusive acts predicated upon the disparate-impact theory “and take appropriate action…consistent with the policy of this order”
• Orders all federal agencies to, within 90 days, “evaluate” existing consent judgments and permanent injunctions based upon the disparate-impact theory “and take appropriate action…consistent with the policy of this order”
• Orders the U.S. attorney general to determine whether federal law preempts any state law pertaining to disparate-impact and identify whether those laws “have constitutional infirmities that warrant Federal action”
• Orders the U.S. attorney general and the chair of the EEOC 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”

What This Means to You

The EO states it “shall be implemented consistent with applicable law and subject to the availability of appropriations.” It is important to note that the EO does not alter existing statutes and, indeed, disparate-impact remains a viable theory of discrimination under existing laws. It is also important to note that the EO is directed toward federal agencies; private litigation will continue, and state and local laws may still enforce disparate-impact claims.