On April 23, 2025, the Administration issued a new Executive Order on discrimination issues. While much of the executive order focused on Title VI discrimination issues in education, the executive order also attacked the use of “disparate impact” theory in employment discrimination claims under Title VII of the Civil Rights Act of 1964.
Broadly stated, “disparate impact” theory (sometimes also referred to as an “adverse impact” theory) is a way of proving discrimination, based not on proof of discriminatory intent by one or more decisionmakers, but instead by showing that a particular employment practice causes a disparate impact against one or more protected EEO categories. Congress expressly wrote disparate impact theory into Title VII (codified at 42 U.S.C. § 2000e-2(k)) in 1991, in response to the Supreme Court’s decision in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), reinstating something closer to the Supreme Court’s original holding in Griggs v. Duke Power Co., 401 U.S. 424 (1971). The Genetic Information Nondiscrimination Act (GINA) contains a statutory exception to applying disparate impact theories in GINA cases (42 U.S.C. § 2000ff-7(a)). The Rehabilitation Act (the chief federal sector statute for disability discrimination) incorporates the Title VII standards of 42 U.S.C. § 2000e-2(k) by reference. See 29 U.S.C. §§ 791(f); 42 U.S.C. §§ 2000e-5(a), 12117(a). The Supreme Court had recognized that the ADEA includes disparate impact theory (albeit using the Wards Cove formulation rather than the Section 2000e-2(k) formulation) in Smith v. City of Jackson, 544 U.S. 228 (2005). As part of its authority implementing these statutes, the Equal Employment Opportunity Commission has promulgated regulations as well as enforcement guidance.
The executive order takes several actions targeting use of disparate impact theory in discrimination cases. First, section 4 of the executive order directed all federal agencies to deprioritize enforcement of disparate impact claims under Title VII and its related regulations. Section 5 calls for the Attorney General to review and identify any disparate impact regulations that should be repealed—including review of “other laws or decisions, including at the State level, that impose disparate-impact liability.” Section 6 directs the Attorney General and the EEOC Chair to review (and presumably, close out) pending litigation and investigations in disparate impact cases—including taking action to possibly seek cancellation of prior consent judgments or injunctions in disparate impact cases. Section 7 directs the Attorney General to review if any federal laws preempt state or local disparate impact laws. Section 7 also directs the Attorney General and the EEOC Chair to prepare guidance for employers “regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education.”
There are limitations on the effect of this executive order, however. As noted above, disparate impact is ultimately grounded in statute and Supreme Court precedent which cannot be modified by executive order. An executive order does not control the courts and cannot prevent private litigants from pursuing disparate impact lawsuits in court if they so choose—it just means that there will be less enforcement activity by the executive branch separate from private litigants. The courts’ response to attempts to vacate prior disparate impact consent judgments or injunctions remains to be seen, especially in the face of possible intervention by other parties affected by those injunctions or consent judgments. For cases in the federal sector administrative complaints process, decisions in that forum are decided based on statute, Supreme Court and EEOC Office of Federal Operations precedent; federal sector litigants also retain the right to litigate their cases de novo in federal court once EEOC processing is complete. The executive order also only applies to the executive branch and does not control legislative branch discrimination claims under the Congressional Accountability Act. It is unclear how far the executive order’s efforts to preempt state or local disparate impact statutes, as those laws may for example be grounded in parallel express provisions of the relevant state’s constitution. That said, state and local discrimination statutes are not generally applicable to federal employees. Making changes to existing disparate impact regulations may also face challenges. The Attorney General does not have direct authority to void EEOC regulations, as EEOC’s authority to promulgate rules in this area is grounded in statute. See 29 U.S.C. §§ 633a(b), 791(f); 42 U.S.C. §§ 2000e-16(b), 12116. As the EEOC presently lacks quorum, it cannot amend its regulations except in the case of “[p]urely ministerial changes to regulations that are compelled by statute, such as mandatory annual adjustment of civil penalties.” Further, court deference to changes in disparate impact regulations and guidance (some of which go back many years) is unclear, given that EEOC regulations no longer receive Chevron deference and instead only receive the same lesser degree of deference (referred to as Skidmore deference) that historically applied to EEOC guidance documents and manuals, and a court’s decision to apply Skidmore deference to a given agency policy depends in part on its “consistency with earlier and later pronouncements.” See Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244, 2262-2263 (2024); Federal Express Corp. v. Holowecki, 552 U.S. 389, 128 S.Ct. 1147, 1154, 1155, 1156-1157 (2008); Skidmore v. Swift & Co., 323 U.S. 124, 140 (1944).
If you are a civilian federal employee and wish to seek advice regarding a possible discrimination claim, consider contacting Gilbert Employment Law, to request an initial consultation.