On April 23, 2025, President Donald Trump issued an Executive Order (“EO”) entitled, “Restoring Equality of Opportunity and Meritocracy,” with one of its purposes being to target regulations and enforcement by the Equal Employment Opportunity Commission (“EEOC”) on claims premised upon disparate-impact liability. See https://www.whitehouse.gov/presidential-actions/2025/04/restoring-equality-of-opportunity-and-meritocracy/. The EO seeks to implement equality of opportunity, as opposed to equal outcomes, by restoring merit-based decision-making in employment decisions. The EO explains that, due to disparate-impact liability, “employers cannot act in the best interests of the job applicant, the employer, and the American public.”
Disparate-impact liability is a legal concept rooted in the Supreme Court’s decision from Griggs v. Duke Power Co., 401 U.S. 424 (1971), where it was held that the use of a standardized test for hiring, while neutral on its face, was discriminatory as it adversely impacted a protected class. The Court held that even if a policy seems fair on the surface, it can be discriminatory if it creates unnecessary barriers that make it harder for certain groups of people to succeed. To bring a disparate-impact liability claim, a plaintiff must only show that a facially neutral employment policy or practice has had a disproportionately negative effect on a particular group.
On September 15, 2025, in response to President Trump’s EO, the EEOC issued its Disparate Impact Rule, declaring that it would cease investigating or pursuing Charges based solely upon disparate-impact evidence. Of note, the Rule does not prohibit private plaintiffs from pursuing disparate-impact claims against private employers through other enforcement measures. Some litigants are also pursuing litigation against the EEOC for refusing to completely prosecute/investigate claims of disparate-impact discrimination, claiming that the EEOC violated its statutory obligations. See, e.g., Cross v. U.S. Equal Employment Opportunity Commission, et al. (Case No. 1:25-cv-03702-TNM) in the U.S. District Court for the District of Columbia.