On April 23, 2025, President Trump issued Executive Order “Restoring Equality of Opportunity and Meritocracy.” The Executive Order revoked Presidential approval of long-standing DOJ regulations implementing Title VI of the Civil Rights Act of 1964, and further directed the Attorney General to repeal or amend Title VI regulations for all federal agencies where they contemplate disparate impact liability. The order also requires the Attorney General to identify and report any federal regulations, guidance, or orders, as well as state laws that impose disparate impact liability.
The Executive Order built on the February DOJ memo narrowing the use and enforcement of the disparate impact standard by directing all agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” To implement this mandate, DOJ and the chair of the EEOC were directed to assess all ongoing enforcement and suits to identify and stop enforcement of matters that rely upon a disparate impact theory. Finally, the Order tasked the Attorney General with determining whether any Federal laws effectively prohibit (preempt) state laws that use the disparate impact standard and to take corresponding action in furtherance of the Order if so.
On December 10, 2025, DOJ published a final rule, rescinding the portions of its Title VI regulations that created disparate-impact liability, leaving only Title VI’s prohibition on disparate treatment in place. DOJ’s rule “does not preclude the use of data on disparate outcomes to help prove intentional discrimination.” But intentional discrimination claims may not be capable of addressing discrimination from “benignly-motivated policies that appear neutral on their face” but are “traceable to the nation’s long history of invidious race discrimination.” In line with its new rule, DOJ announced that moving forward it “will not pursue Title VI disparate-impact liability against its Federal-funding recipients.”
DOJ did not take public input on its final rule, invoking an APA exception for agency rules that relate “to agency management or personnel or to public property, loans, grants, benefits, or contracts,” replicating a similar attempt to roll back disparate-impact liability in January 2021. Because DOJ reviews and approves other agencies’ new or amended Title VI implementing regulations under Executive Order 12250, it is likely other agencies will move to eliminate disparate-impact liability in the future.
Agency Implementation
- DOJ issued new guidance for all federal funding recipients on what activities constitute “unlawful discrimination,” reinterpreting federal antidiscrimination laws to prohibit a broad range of activities previously understood to be legal under existing civil rights laws and court precedent.
- DOJ also issued new guidance for DOJ components on narrowing the use of the disparate impact standard.
- DOE has fast tracked rescissions of civil rights protections to eliminate the agency’s use of the disparate impact standard.
Background
The disparate impact standard has been used for over sixty years by federal agencies to ensure equal access to federal employment, contracting, and other benefits regardless of applicant’s race, disability, sex, or other protected characteristic. The standard is used to enforce bedrock civil rights protections where workplace practices or decisions by federal funding recipients appear neutral on their face but disproportionately affect people based on their race, sex, disability, or other protected trait. Notably, the disparate impact standard does not prohibit any disproportionate effect. While the specific legal test varies across civil rights, housing, employment and other fields, proving disparate impact generally requires extensive statistical evidence showing the particular policy or decision caused a significant, adverse impact on the protected group, and if the policy’s goals are legitimate, the plaintiff or complainant must also show that there is a less discriminatory alternative to accomplish the same policy goals.
Under President Biden, several agencies issued updated guidance on the legality and implementation of the disparate impact standard:
- EPA’s Office of External Civil Rights Compliance published new Civil Rights Guidance on Procedural Safeguards: Requirements and Best Practices for recipients of EPA financial assistance.
- EPA issued interim guidance on EJ and civil rights in permitting to ensure compliance with Title VI, including the consideration of disparate and cumulative impacts, and information on community engagement and tribal consultation.
- HUD released a guide for Community Development Block Grant-Disaster Recovery (CDBG-DR) grantees on how to comply with fair housing and civil rights laws in drafting their disaster recovery or mitigation Action Plans.
For more, listen to EELP’s CleanLaw podcast on Title VI of the Civil Rights Act and the disparate impact standard: