Trump seeks to strip away legal tool key to civil rights enforcement
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'This order aims to destroy the foundation of civil rights protections in this country, and it will have a devastating effect on equity for Black people and other communities of color,' said Dariely Rodriguez, the acting co-chief counsel at the Lawyers' Committee for Civil Rights Under Law, an advocacy group
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The disparate-impact test has been crucial to enforcing key portions of the landmark Civil Rights Act, which prohibits recipients of federal funding from discriminating based on race, color or national origin. For decades, it has been relied upon by the government and attorneys to root out discrimination in areas of employment, housing, policing, education and more.
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Civil rights prosecutors say the disparate-impact test is one of their most important tools for uncovering discrimination because it shows how a seemingly neutral policy or law has different outcomes for different demographic groups, revealing inequities.
Lawyers say the test has been crucial in showing how criminal background and credit checks affect employment of Black people, how physical capacity tests inhibit employment opportunities for women, how zoning regulations could violate fair housing laws, and how schools have meted out overly harsh discipline to minority students and children with disabilities.
Over the last decade, major businesses and organizations have settled cases in which the disparate-impact test was applied, resulting in significant policy changes.
One of the largest settlements involved Walmart, which in 2020 agreed to a $20 million settlement in a case brought by the Equal Employment Opportunity Commission that claimed the company's practice of giving physical ability tests to applicants for certain grocery warehouse jobs made it more difficult for women to get the positions.
The use of the disparate-impact rule, however, has also long been a target of conservatives who say that employers and other entities should not be scrutinized and penalized for the mere implication of discrimination, based largely on statistics. Instead, they argue that such scrutiny should be directed at the explicit and intentional discrimination prohibited by the Civil Rights Act.
Opponents say that the disparate-impact rule has been used to unfairly discriminate against white people. In 2009, the Supreme Court ruled in favor of white firefighters in New Haven, Connecticut, who claimed reverse discrimination when the city threw out a promotional examination on which they had scored better than Black firefighters.
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Trump's order resurrects a last-ditch effort made in the final days of his first term to repeal disparate-impact regulations through a formal rule-making process, which was nixed by the Biden administration when he left office.
The new order, titled 'Restoring Equality of Opportunity and Meritocracy,' echoes arguments Trump has adopted from far-right conservatives, who say the country has become too focused on its racist history, and that protections from the civil rights era have led to reverse racism against nonminority groups.
Disparate-impact liability is part of 'a pernicious movement' that seeks 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,' the order stated.
The president ordered federal agencies to 'eliminate the use of disparate-impact liability in all contexts to the maximum degree possible,' under the law and Constitution, and required that agencies 'deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.'
That means no new cases are likely to rely on the theory in civil rights enforcement -- and existing ones will not be enforced.
His order also instructs agencies to evaluate existing consent judgments and permanent injunctions that rely on the legal theory, which means that cases and agreements in which discrimination has been proved could be abandoned.
The order takes aim directly at the use of the test in enforcing the Civil Rights Act, requiring Attorney General Pam Bondi to begin repealing and amending any regulations that apply disparate-impact liability to implement the 1964 law.
Trump's executive order, which is likely to face legal challenges, falsely claimed that the disparate-impact test was 'unlawful' and violated the Constitution. In fact, the measure was codified by Congress in 1991, upheld by the Supreme Court as recently as 2015 as a vital tool in the work of protecting civil rights, and cited in a December 2024 dissent by Justice Samuel Alito.
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Harrison Fields, a White House spokesperson, said the disparate impact theory 'wrongly equates unequal outcomes with discrimination and actually requires discrimination to rebalance outcomes.'
'The Trump administration is dedicated to advancing equality, combating discrimination and promoting merit-based decisions, upholding the rule of law as outlined in the U.S. Constitution,' Fields said.
Now the Justice Department's embattled civil rights division has halted the use of disparate-impact investigations altogether, officials said.
In an interview last month, Harmeet K. Dhillon, the assistant attorney general for civil rights, praised the executive order for rolling back what she called 'a very discredited' theory that 'should be overruled.'
'We're not in that business anymore, pursuant to the executive order,' she told conservative podcast host Glenn Beck.
She went on to suggest that the level of discrimination that spurred civil rights laws no longer existed. 'It's 2025, today,' she said, 'and the idea that some police department or some big employer can be sued because of statistics, which can be manipulated, is ludicrous and it is unfair.'
Civil rights advocates say Trump is trying to effectively gut antidiscrimination laws by fiat.
Rodriguez, of the Lawyers' Committee for Civil Rights Under Law, said disparate impact had become a crucial guardrail for 'ensuring that there are no artificial barriers that are limiting equal access to economic opportunity in every facet of our daily life.' The test helps root out discrimination that many people may not realize is constraining their opportunities, she added.
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'The impact of this,' Rodriguez said of Trump's order, 'cannot be overstated.'
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