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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NBC News
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NBC News
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'He told us that when we arrived in Venezuela, that he suffered abuse at the hands of guards there in El Salvador,' said Reyes, referring to Hernandez's account of sexual abuse. Hernandez said he was unaware of any formal system at CECOT through which he could report the alleged abuse and that if detainees tried to complain to superiors at the prison, they would often be subjected to beatings by guards. The Salvadoran government did not immediately respond to a request for comment on Hernandez's sexual assault allegations and claims from other Venezuelan men that they were physically and psychologically abused in the prison. The government has previously said it observes safety and order standards, and the director of CECOT told CNN that 'the whole operation is based on strict respect for human rights.' In a statement, the U.S. Department of Homeland Security referred NBC News to the Salvadoran government for comment because the Venezuelan men were 'not U.S. citizens or under U.S. jurisdiction.' When asked whether the U.S. government would continue to send people to CECOT, Assistant Secretary Tricia McLaughlin said in a statement, 'whether it is CECOT, Alligator Alcatraz, Guantanamo Bay or another detention facility, these dangerous criminals will not be allowed to terrorize U.S. citizens.' The statement said that President Donald Trump and Homeland Security Secretary Kristi Noem 'are using every tool available to get criminal illegal aliens off our streets and out of our country. Our message is clear: Criminals are not welcome in the United States.' 'You will not be leaving here' Hernandez and others said they were repeatedly beaten by prison officials. 'Our daily bread there as Venezuelans were beatings, threats. For whatever circumstance,' Hernandez said. 'If you answer an official, they hit you. ... If you talk, they hit you.' 'Every time they went to hit a large group outside, they would put us in the required position so we couldn't see. And to hear the moans, to hear how they were hitting the people was also very heavy.' Another detainee, Andry Blanco Bonilla, 40, said he and the other Venezuelans faced verbal, psychological and physical abuse from the day they entered CECOT. 'There were so many moments of anguish and terror,' he said in Spanish. 'I feared for my life.' Blanco Bonilla said that when they first arrived at CECOT, the men were shackled so tightly at the ankles that walking 'would give us cuts and bruises.' He said the guards denied them food and access to bathrooms or showers as punishment. Blanco Bonilla, who had gone to the U.S. to seek asylum, said he would never forget the words of a prison official who told the detainees, 'Welcome to CECOT. Welcome to hell.' 'You will not be leaving here. Your days are over,' the official said, according to Blanco Bonilla. The detainees would suffer beatings as the guards saw fit, he said. 'They tried to avoid hitting our faces. They kicked us in the back or ribs,' he said. 'When they made us get on our knees, they would step on our toes with their boots. They hit us with batons, they hit us on the head.' After a beating, Blanco Bonilla said he would be brought by guards to a prison doctor, who would say to him, 'You hit yourself. How did you hit yourself?' When he tried to tell the doctor that he was beaten by prison staff, a guard would hit him with a baton in the back, Blanco Bonilla said. The doctor would then ask him again, 'How did you hit yourself?' 'I realized that if I didn't tell them what they wanted, they would keep hitting me,' he said, adding that the doctor would then make a false report about the incident. 'We are only migrants' Reyes, 36, said one of hardest moments for him was when a prison official 'encouraged us to commit suicide' and told him 'this is how your whole nightmare ends.' 'I did think about committing suicide at some point. But I thought about my two daughters, I thought about my family,' he said about his two children, ages 3 and 6. Reyes said there were days when 'we woke up and all said to ourselves, 'We aren't getting out of here.'' He said he witnessed and experienced physical aggression from CECOT guards. Reyes said he was thankful that he and other men were able to share copies of the Bible inside and motivate each other. The detainees who spoke to NBC News said they had no contact with the outside world or access to U.S. officials during the four months they were held in CECOT. Reyes did recall seeing Noem walk by when she toured CECOT in March, shortly after he and the others were sent there. She went past several cells that Salvadoran officials assured her held hardened criminals and gang members. Reyes says he wasn't told Noem was coming but remembers that day as the only day the detainees had gotten something cold to drink. He said he and others pressed their faces to the bars and saw her. 'We began screaming, 'Freedom, freedom, freedom. We are not criminals. We are only migrants,'' Reyes said. The men were sent to CECOT after Trump invoked the Alien Enemies Act in March, declaring the Venezuelan gang Tren de Aragua an invading force. Immigration officials have since used that act to deport hundreds of people without immigration hearings, alleging that they were gang members. The men who spoke to NBC News, as well as the families of former detainees and their attorneys, have strongly denied any ties to gangs and said they were unfairly targeted because of tattoos that may be popular in Venezuela and are unrelated to Tren de Aragua. They have also said some migrants were denied due process and a chance to defend themselves from the accusations against them. Experts have said tattoos are not closely connected with affiliation to Tren de Aragua. An official with Immigration and Customs Enforcement previously said the administration did not solely rely on tattoos to identify the men sent to CECOT as gang members. A New York Times investigation, which relied on interviews with prosecutors and law enforcement officials as well as court documents and media reports in multiple countries, found that most of the men sent to CECOT did not have criminal records in the United States or in the region. It found at least 32 of the more than 200 men faced serious criminal accusations or convictions in the United States or abroad. Very few of them appeared to have any documented evidence connecting them to Tren de Aragua. The men said their strong faith in God, love for their families and a belief that one day they would get justice helped them keep going during their most desperate moments. 'Reuniting again with my parents and children was a moment of such happiness,' Blanco Bonilla said. While the men resume life back in Venezuela, the question of whether they would ever return to the U.S. remains. During a status hearing Thursday tied to the government's use of the Alien Enemies Act, the Department of Justice said it would bring any of the men back for immigration or habeas proceedings if a 'lawful order' were issued. 'Venezuela has made assurances they'll allow us to do that,' DOJ attorney Tiberius Davis told the court. Now that they are back home with their families, the men have said they are demanding justice from Trump and Salvadoran President Nayib Bukele. On Thursday, former detainee Neiyerver Adrián Leon Rengel filed a complaint, reviewed by NBC News, against the Department of Homeland Security under the Federal Tort Claims Act, claiming he was removed from the United States unlawfully and without due process. The complaint was filed on behalf Rengel by the League of United Latin American Citizens (LULAC) and the Democracy Defenders Fund, which describes itself as a nonpartisan group that defends democratic institutions and opposes autocrats. LULAC told NBC News that it also planned to file a lawsuit and expected more lawsuits to come after that. Rengel alleged that he suffered physical, verbal and psychological abuse in CECOT and that the U.S. government could have and should have secured his release, according to the complaint. The Department of Homeland Security declined to comment on the complaint. 'We were mistreated, our rights were violated, crimes against humanity were committed,' Blanco Bonilla said. Hernandez said he and others are still working through the psychological effects of their time in CECOT. 'All 252 [of the men] are doing poorly, mentally.' 'Even though we are free, even though we are now with our families, happy and content,' he said, 'there is still a big mental block, a block that particularly I have not been able to find a way to deal with.' But despite their ongoing struggles, Hernandez said the shared experience has created a lasting sense of community among the men. 'We entered [CECOT] as 252 strangers, 252 Venezuelans, but 252 brothers came out,' Hernandez said. 'We all supported each other; we were all there in the constant fight.'
