Until today, the U.S. Justice Department has curated a fairly sophisticated judicial/administrative gloss on what it interpreted as the liability standards around what the U.S. Supreme Court elaborated a generation or so ago as "disparate impact" as a basis for Title VII discrimination claims (Title VI, 42 U.S.C. § 2000d et seq.) claims. Title VII prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance). The question, then, revolves around the focus of the discrimination analysis. The notion of proof of discrimination by evidence of disparate impact, that is by difference in effect from which the effect of discrimination might be found, was developed in the late 1960s and 1970s by the U.S. Supreme Court and then found its way into regulations (e.g., 40 C.F.R. § 7.35(b), (c) and 28 C.F.R. § 42.104(b)(2)).
The U.S. Justice Department described its approach to disparate impact litigation this way:
Section VI discusses intentional discrimination or disparate treatment as one type of Title VI claim. Another type of Title VI violation is based on agency Title VI implementing regulations and is known as the disparate impact or discriminatory effects standard. While a discriminatory impact or effect may also be evidence of intentional discrimination or disparate treatment, this section discusses disparate impact as a cause of action independent of any intent.
The disparate impact regulations seek to ensure that programs accepting federal money are not administered in a way that perpetuates the repercussions of past discrimination. As the Supreme Court has explained, even benignly-motivated policies that appear neutral on their face may be traceable to the nation’s long history of invidious race discrimination in employment, education, housing, and many other areas. See Griggs v. Duke Power Co., 401 U.S. 424, 430–31 (1971); City of Rome v. United States, 446 U.S. 156, 176–77 (1980); Gaston Cty. v. United States, 395 U.S. 285, 297 (1969). The disparate impact regulations ensure “that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination.” H.R. Misc. Doc. No. 124, 88th Cong., 1st Sess. 3, 12 (1963). The Supreme Court explained in Griggs, 401 U.S. at 429–30, that under Title VII, which was enacted at the same time as Title VI, “practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to ‘freeze’ the status quo of prior discriminatory employment practices.” Id. at 430; see also Texas Dep’t of Hour. & Cmty. Affairs v. Inclusive Communities, 135 S. Ct. 2507, 2521 (2015) (noting that “[r]ecognition of disparate impact claims is consistent with the [Fair Housing Act’s] central purpose” as it “was enacted to eradicate discriminatory practices within a sector of our Nation’s economy”) (citations omitted). The regulations task agencies to take a close look at neutral policies that disparately exclude minorities from benefits or services, or inflict a disproportionate share of harm on them.
A growing body of social psychological research has also reaffirmed the need for legal tools that address disparate impact. This research demonstrates that implicit bias against people of color remains a widespread problem.[1] Such bias can result in discrimination that federal agencies can prevent and address through enforcement of their disparate impact regulations. Because individual motives may be difficult to prove directly, Congress has frequently permitted proof of only discriminatory impact as a means of overcoming discriminatory practices. The Supreme Court has, therefore, recognized that disparate impact liability under various civil rights laws, “permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment.” Id. at 2522.
In a disparate impact case, the investigation focuses on the consequences of the recipient’s practices, rather than the recipient’s intent. Lau v. Nichols, 414 U.S. 563, 568 (1974). As explained throughout this Section, “a plaintiff bringing a disparate-impact claim challenges practices that have a ‘disproportionately adverse effect on minorities’ and are otherwise unjustified by a legitimate rationale.” Inclusive Communities, 135 S. Ct. at 2513 (quoting Ricci v. DeStefano, 557 U.S. 557, 577 (2009). [2]
Twenty-six federal funding agencies have Title VI regulations that include provisions addressing the disparate impact or discriminatory effects standard. [3] (U.S. Dept of Justice Title VI Legal Manual, Section VII: Proving Discrimination--Disparate Impact)
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Now President Trump has entered the field. He issued on 23 April 2025 an Executive Order, Restoring Equality of Opportunity and Meritocracy the objective of which is to eliminate disparate impact for the lexicon of anti-discrimination in the United States. The object was not to abandon anti-discrimination goals bit to re-frame it in a way that his political opponents will likely find less than satisfactory. In place of "effects"--the functionalist approach to jurisprudence that was the hallmark of a generation or more of high level jurists and their supporters in academia and government--Mr. Trump would use a formalist approach, one grounded in textual neutrality and more importantly, on intent. He rejects the normative underpinnings of a test that finds intent a matter of indifference and instead focuses on "effects" or consequences of any act--thus not the individual but the consequence, a form, perhaps, of strict liability in which the instrument of the harm is burdened with the remedial obligation. Article 1 of the Executive Order makes Mr. Trump's case for the change:
A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes. It promises that people are treated as individuals, not components of a particular race or group. It encourages meritocracy and a colorblind society, not race- or sex-based favoritism. Adherence to this principle is essential to creating opportunity, encouraging achievement, and sustaining the American Dream. But a pernicious movement endangers this foundational principle, seeking to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement. A key tool of this movement is disparate-impact liability, which 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. Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability. It not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution. (Restoring Equality of Opportunity and Meritocracy).
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The tension between functional (effects) and formal (text, intent) approaches is very old in the U.S.. American judges tend to slip between them as the jurisprudence. There is no magic here--just choice--not jurisprudence but policy choice clothed in thee vagaries of the interpretive authority of courts. The question presented is not precisely textual but political: What is it that the political establishment intended for the nation as the baseline approach to protecting against discrimination. On the one hand, the nation can choose to treat discrimination as essentially grounded in intent to discriminate.. The environment in which these choices are made (to discriminate or not to discriminate) may produce other fields of political action (or agitation) in favor of consequential policies. But law need not start from the political determination that discrimination is personal (the way crimes are personal) and not collective, and that its adverse impacts must be remedies by reference to the acts that were propelled by intent to harm. Instead the law can start from the proposition that discrimination is actually not personal but collective--or systemic, and further that the object of anti-discrimination laws is not focused on the autonomous individual (who in any case might be re-educated if the political society wishes and compels), but that the measure of discrimination its its negative impact, for which the odd individual is merely an instrument (who ought to be punished as well perhaps) but who, in a sense does not need to have agency to cause what would in any case be caused. Thus, with disparate impact, the individual becomes an instrument (like a hammer), but the predicate for a finding of discrimination is the impact irrespective of any agency of the individual intended to or directed for the purpose of causing harm. Either works, but each is sourced in quite distinctive ways of approaching both discrimination and in defining the object of protection against it. That is but an eddy in the much larger conceptual battles between the effect of an act or the intent to do the act ought to constitute the predicate around which a remedial obligation can be built. And that difference is not jurisprudential at its root--it might better be understood as fundamentally political.
The text of the Executive Order follows.
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered:
Section 1. Purpose.
A bedrock principle of the United States is that all citizens are
treated equally under the law. This principle guarantees equality of
opportunity, not equal outcomes. It promises that people are treated as
individuals, not components of a particular race or group. It
encourages meritocracy and a colorblind society, not race- or sex-based
favoritism. Adherence to this principle is essential to creating
opportunity, encouraging achievement, and sustaining the American Dream.
But
a pernicious movement endangers this foundational principle, seeking to
transform America’s promise of equal opportunity into a divisive
pursuit of results preordained by irrelevant immutable characteristics,
regardless of individual strengths, effort, or achievement. A key tool
of this movement is disparate-impact liability, which 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. Disparate-impact
liability all but requires individuals and businesses to consider race
and engage in racial balancing to avoid potentially crippling legal
liability. It not only undermines our national values, but also runs
contrary to equal protection under the law and, therefore, violates our
Constitution.
On a practical level, disparate-impact liability has
hindered businesses from making hiring and other employment decisions
based on merit and skill, their needs, or the needs of their customers
because of the specter that such a process might lead to disparate
outcomes, and thus disparate-impact lawsuits. This has made it
difficult, and in some cases impossible, for employers to use bona fide
job-oriented evaluations when recruiting, which prevents job seekers
from being paired with jobs to which their skills are most suited — in
other words, it deprives them of opportunities for success. Because of
disparate-impact liability, employers cannot act in the best interests
of the job applicant, the employer, and the American public.
Disparate-impact
liability imperils the effectiveness of civil rights laws by mandating,
rather than proscribing, discrimination. As the Supreme Court put it,
“[t]he way to stop discrimination on the basis of race is to stop
discriminating on the basis of race.”
Disparate-impact liability is
wholly inconsistent with the Constitution and threatens the commitment
to merit and equality of opportunity that forms the foundation of the
American Dream. Under my Administration, citizens will be treated
equally before the law and as individuals, not consigned to a certain
fate based on their immutable characteristics.
Sec. 2. Policy. It is the policy of the United States 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.
Sec 3. Revoking Certain Presidential Actions. The following Presidential approvals of the regulations promulgated under 42 U.S.C. 2000d-1 are hereby revoked:
(a) the Presidential approval of July 25, 1966, of the Department of Justice Title VI regulations (31 Fed. Reg. 10269), as applied to 28 C.F.R. 42.104(b)(2) in full; and
(b) the Presidential approval of July 5, 1973, of the Department of Justice Title VI regulations (38 Fed. Reg.
17955, FR Doc. 73-13407), as applied to the words “or effect” in both
places they appear in 28 C.F.R. 42.104(b)(3), and as applied to 28
C.F.R. 42.104(b)(6)(ii) and 28 C.F.R. 42.104(c)(2) in full.
Sec. 4. Enforcement Discretion to Ensure Lawful Governance. Given the limited enforcement resources of executive departments and agencies (agencies), the unlawfulness of disparate-impact liability, and the policy of this order, all agencies shall deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability, including but not limited to 42 U.S.C. 2000e-2, 28 C.F.R. 42.104(b)(2)–(3), 28 C.F.R. 42.104(b)(6)(ii), and 28 C.F.R. 42.104(c)(2).
Sec. 5. Existing Regulations.
(a) As delegated by Executive Order 12250 of November 2, 1980
(Leadership and Coordination of Nondiscrimination Laws), the Attorney
General shall initiate appropriate action to repeal or amend the
implementing regulations for Title VI of the Civil Rights Act of 1964
for all agencies to the extent they contemplate disparate-impact
liability.
(b) Within 30 days of the date of this order, the
Attorney General, in coordination with the heads of all other agencies,
shall report to the President, through the Assistant to the President
for Domestic Policy:
(i) all existing regulations, guidance, rules,
or orders that impose disparate-impact liability or similar
requirements, and detail agency steps for their amendment or repeal, as
appropriate under applicable law; and
(ii) other laws or decisions,
including at the State level, that impose disparate-impact liability and
any appropriate measures to address any constitutional or other legal
infirmities.
Sec. 6. Review of Current Matters.
(a) Within 45 days of the date of this order, the Attorney General
and the Chair of the Equal Employment Opportunity Commission shall
assess all pending investigations, civil suits, or positions taken in
ongoing matters under every Federal civil rights law within their
respective jurisdictions, including Title VII of the Civil Rights Act of
1964, that rely on a theory of disparate-impact liability, and shall
take appropriate action with respect to such matters consistent with the
policy of this order.
(b) Within 45 days of the date of this
order, the Attorney General, the Secretary of Housing and Urban
Development, the Director of the Consumer Financial Protection Bureau,
the Chair of the Federal Trade Commission, and the heads of other
agencies responsible for enforcement of the Equal Credit Opportunity Act
(Public Law 93-495), Title VIII of the Civil Rights Act of 1964 (the
Fair Housing Act (Public Law 90-284, as amended)), or laws prohibiting
unfair, deceptive, or abusive acts or practices shall evaluate all
pending proceedings that rely on theories of disparate-impact liability
and take appropriate action with respect to such matters consistent with
the policy of this order.
(c) Within 90 days of the date of this
order, all agencies shall evaluate existing consent judgments and
permanent injunctions that rely on theories of disparate-impact
liability and take appropriate action with respect to such matters
consistent with the policy of this order.
Sec. 7. Future Agency Action.
(a) In coordination with other agencies, the Attorney General shall
determine whether any Federal authorities preempt State laws,
regulations, policies, or practices that impose disparate-impact
liability based on a federally protected characteristic such as race,
sex, or age, or whether such laws, regulations, policies, or practices
have constitutional infirmities that warrant Federal action, and shall
take appropriate measures consistent with the policy of this order.
(b)
The Attorney General and the Chair of the Equal Employment Opportunity
Commission shall 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.
Sec. 8. Severability. If any provision of this order, or the application of any provision to any individual or circumstance, is held to be invalid, the remainder of this order and the application of its other provisions to any other individuals or circumstances shall not be affected thereby.
Sec. 9. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department, agency, or the head thereof; or
(ii)
the functions of the Director of the Office of Management and Budget
relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c)
This order is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity by
any party against the United States, its departments, agencies, or
entities, its officers, employees, or agents, or any other person.
DONALD J. TRUMP
THE WHITE HOUSE,
April 23, 2025.
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