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.
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.
For more, listen to EELP’s CleanLaw podcast on Title VI of the Civil Rights Act and the disparate impact standard: