On April 23, 2025, President Trump issued an Executive Order entitled, “Restoring Equality of Opportunity and Meritocracy,” which dramatically scales back enforcement of the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964 (“Title VII”). Title VII applies to private and public sector employers with 15 or more employees and prohibits discrimination based on race, color, religion, sex, and national origin. The Executive Order’s purpose is “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” Disparate impact is a legal theory wherein seemingly neutral programs, policies, or practices may be considered discriminatory if they disproportionately affect a protected group. The Executive Order directs the Equal Employment Opportunity Commission (EEOC) to deprioritize any enforcement and litigation regarding disparate impact claims under Title VII. The Executive Order also instructs the EEOC to assess pending investigations, civil suits, legal positions, and existing judgments that rely on a theory of disparate impact liability and take “appropriate action” consistent with the new policy. The Executive Order also seeks to repeal and modify existing federal rules, orders, and regulations that “contemplate disparate impact,” and instructs the EEOC to create guidance for employers regarding “appropriate methods to promote equal access to employment regardless of whether an applicant has a college education.”
Tips: This Executive Order is wide reaching and will almost certainly be challenged in court. In the meantime, employers should continue to analyze programs, policies, and practices to determine if protected groups are disproportionately impacted because individual parties may still file claims in federal court even if the EEOC does not pursue the claim on their behalf. In addition, state enforcement agencies in California, Oregon, and Washington are likely to continue interpreting state law to recognize disparate impact liability as a form of illegal discrimination. Enforcement agencies in Arizona, Idaho, and Montana have historically interpreted state law to recognize disparate impact liability, but those interpretations have largely relied on and mirrored federal interpretation of Title VII. Until we know more about how these directives will be implemented at both the federal and state levels, employers should not change how they analyze potential discrimination policies or practices. Vigilant will continue to monitor developments related to this Executive Order and update members as necessary. If you have any questions, please contact your Vigilant Law Group employment attorney.
