Federal agencies enforcing anti-discrimination laws must eliminate their use of unintentional bias claims under disparate impact legal theory, after a new executive order from President Donald Trump.
The April 23 order requires the Equal Employment Opportunity Commission and Justice Department to review their investigations and lawsuits that rely on disparate impact claims within 45 days and “take appropriate action”—indicating the EEOC should drop or revise its legal position on existing workplace bias cases.
Trump signaled since the early days of his new term that his administration would back away from using disparate impact to enforce the 1964 Civil Rights Act and other anti-bias laws. Attorney General Pam Bondi previously told Justice Department staff to narrow their use of disparate impact claims.
Conservative legal scholars have long criticized the legal theory, which relies not on a individual’s discriminatory treatment, like many claims, but instead on the biased systemic effects of a facially neutral employer policy. These critics have said disparate impact makes employers unnecessarily vulnerable to bias claims in instances where there’s no discriminatory intent.
The US Supreme Court recognized disparate impact as a viable type of claim under Title VII of the Civil Rights Act in its 1971 decision Griggs v. Duke Power Co. Despite the Trump administration’s demands on the EEOC and DOJ, private individuals can continue to bring disparate impact claims alleging bias in the workplace, so long as courts continue to recognize them as legally valid.
Trump’s order goes so far as to say disparate impact theory actually promotes discrimination, as employers attempt to ensure equal outcomes in hiring and other decisions to avoid bias claims.
“Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability,” according to the executive order. “It not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution.”
Cases at Risk
While the bulk of workplace bias cases focus on intentional discrimination claims, Trump’s order is likely to force the EEOC to drop its support for some Title VII cases already pending in courts and investigations progressing through the commission’s charge process.
In one case that could be affected by a disparate impact pullback, the EEOC sued convenience store chain Sheetz Inc. in 2024, alleging the company’s sweeping approach to screening job applicants based on criminal history had a disproportionate effect on Black, Native American, and multiracial candidates.
The EEOC on April 24, argued against the company’s request for reconsideration after the court declined its motion to dismiss the case.
The agency also filed an amicus brief in December supporting a former
The already scarce enforcement of artificial intelligence-related employment bias claims is likely to shrink even further if the government backs away from disparate impact theory, since those claims by nature are less likely to show visible intentional bias.
The EEOC in 2024 filed a brief supporting a job applicant suing
In a disparate impact case the EEOC recently settled, the agency sued the Urbana School District No. 116 in Illinois, alleging its policy of limiting salary increases for employees who were within 10 years of retirement resulted in age discrimination. A federal court approved a consent decree resolving that case on April 16.
Trump’s April 23 order also calls for Bondi to revise or repeal regulations related to Title VI of the Civil Rights Act, which governs discrimination within federally funded programs, to the extent they rely on disparate impact.
It also instructs Bondi to review whether the federal government can preempt state laws or regulations that “impose disparate impact liability based on a federally protected characteristic such as race, sex, or age.”
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