On April 23, 2025, President Trump issued an Executive Order titled “Restoring Equality of Opportunity and Meritocracy” (the Order). Through this Executive Order, and accompanying Fact Sheet, the Trump Administration characterizes disparate impact liability as unlawful and states that it “not only undermines our national values but also runs contrary to equal protection under the law and, therefore, violates our Constitution.”  The Order bars federal agencies from relying on the disparate impact theory in their enforcement of anti-discrimination laws, including Title VII of the Civil Rights Act of 1964 (addressing employment discrimination) and Title VI (addressing discrimination in education), and seeks to eliminate its use “in all contexts to the maximum degree possible.”

Under Title VII and other civil rights laws, discrimination claims may be made under two main theories: disparate treatment (which involves intentional discrimination) and disparate impact (which addresses unintentional discrimination). Under the disparate-impact theory, policies or practices that appear to be facially neutral may still be found to be discriminatory if they disproportionately and adversely affect members of a protected class. The theory was first articulated by the U.S. Supreme Court in Griggs v. Duke Power Co., which held that Title VII “proscribes not only overt discrimination, but also practices that are fair in form but discriminatory in operation.” When faced with a disparate impact claim in the employment context, employers must show that the challenged policy or practice is job-related and consistent with business necessity.

The disparate impact theory was codified into the statutory provisions of Title VII in 1991. (42 U.S.C. 200e-2(k)). While the disparate impact theory is not explicitly addressed in the statutory provisions of Title VI, disparate impact is recognized in its implementing regulations. Over the past several decades, disparate-impact liability has become engrained in civil rights laws that touch a wide variety of fields, including employment, access to credit, government contracting, housing and education.

The Order states that “disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill” and “imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

The Order reflects a fundamental shift in the enforcement of civil rights law by focusing exclusively on intentional discrimination and outlines the following directives to federal agencies:

• Deprioritize the enforcement of all statutes and regulations to the extent that they include disparate-impact liability;
• Identify and repeal regulations or guidance that utilize the disparate impact framework (this appears to apply not just to Title VI, but also to Title VII, the Fair Housing Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, and the Equal Credit Opportunity Act);
• Roll back the implementation of Title VI for all agencies with respect to disparate impact liability, which shall include revocation of the Presidential approval of Department of Justice Title VI regulations that address disparate-impact liability;
• Review pending investigations, civil suits, injunctions and consent decrees in which the government has relied upon disparate impact theory and “take appropriate action with respect to such matters” consistent with the policy of the Order;
• Examine whether state laws using the disparate impact theory may be preempted by federal authority or whether such “laws, regulations, policies or practices have constitutional infirmities that warrant Federal action.”

The Order may be of particular interest to employers because of the potential impact on employment practices, and its effect on currently pending cases, audits and investigations  that the government has brought based on a disparate-impact liability theory. However, due to the extensive case law that has explicitly recognized the disparate-impact theory, private individuals will likely still be allowed to pursue disparate impact claims, provided courts continue to recognize them as legally cognizable.

In the Fact Sheet accompanying the Order, President Trump is described as “a champion of individual merit and fairness” and the shift away from disparate impact is suggested to be part of a broader philosophy that aligns with President Trump’s other recent executive orders aimed at eliminating affirmative action and diversity, equity and inclusion (DEI) programs. Many of those previous orders have faced legal challenges and, in some cases, have been enjoined. It is possible that this Order may face similar legal challenges. 

Bond continues to follow these and related developments closely. Please contact Christa Cook, Gavin Gretsky or the Bond attorney with whom you normally work, with any questions.

In a recent decision, the U.S. Second Circuit Court of Appeals, the federal appeals court covering New York and adjacent states, sought to clarify the federal law standard for evaluating retaliation claims under the principal anti-discrimination statutes including, Title VII, the ADEA and the Reconstruction Era Civil Rights Act. Significantly, the court found that such retaliation claims are evaluated under a separate, more expansive standard than substantive discrimination (including hostile work environment) claims.

Read More >> Second Circuit Clarifies Federal Law on Employment Retaliation Claims

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Read More >> The Demise of Roe v. Wade: Employment and Benefits Considerations

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Read More >> Updated Guidance on Religious Accommodations to COVID-19 Vaccine Mandates

In a decision of interest to New York State employers subject to federal safety regulations, the Second Circuit Court of Appeals recently answered that question in the negative. In Bey v. City of New York¹, the Court concluded that where a federal safety regulation expressly prohibits a requested medical accommodation, that regulation trumps the requirements imposed by the Americans with Disabilities Act (the ADA) and Title VII and shields the employer from liability under those statutes. 

Read More >> Must an Employer Offer a Reasonable Accommodation if a Federal Safety Regulation Prohibits Such Accommodation? 

On June 15, 2020, the Supreme Court held in a monumental decision that an employer who discriminates against an employee or applicant based on that individual’s gender identity or sexual orientation violates Title VII of the Civil Rights Act.

Read More >> Landmark Supreme Court Decision Protects LGBTQIA+ Employees Under Title VII of the Civil Rights Act

On June 3, 2019, the United States Supreme Court unanimously ruled in the case of Fort Bend County, Texas v. Davis that the requirement under Title VII of the Civil Rights Act ("Title VII") to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC") is a non-jurisdictional claim-processing rule. In other words, the Court held that a plaintiff's failure to file an EEOC charge does not automatically preclude a federal court from exercising jurisdiction over the complaint; instead, an employer must "promptly" raise the defense that the plaintiff failed to satisfy the procedural requirement of filing an EEOC charge. An employer's failure to raise such a defense promptly could result in forfeiture of the defense, and a federal court may exercise jurisdiction over the complaint despite the plaintiff's failure to file an EEOC charge.

Read More >> U.S. Supreme Court Rules That Title VII's Requirement to File an EEOC Charge Before Commencing a Federal Court Lawsuit is Not a Jurisdictional Rule

For those of you old enough to remember (and young enough to search YouTube), when Saturday Night Live was in its early heyday, one of its most popular skits was “Point/Counterpoint” starring Dan Aykroyd and Jane Curtin.  During this satire on news commentary, Mr. Aykroyd would start his “counterpoint” with “Jane, you ignorant slut,” a phrase that drew laughs in the 70s, but may not be so well received -- even in jest -- today.  And, as we will see from a recent court decision discussed below, when sophomoric name-calling leads to the actual spread of rumors in the workplace, liability for sexual harassment can attach.

Read More >> An Old "SNL" Skit, A New Court Decision, and How Rumors Can Lead to Sexual Harassment Liability

Just this week, the U.S. Court of Appeals for the Second Circuit (which is the federal appeals court that covers cases that originate in the U.S. District Courts in New York) issued a decision holding that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act.  On its face, Title VII prohibits employment discrimination based on five protected categories:  race, color, religion, national origin, and sex.  This Second Circuit ruling now places sexual orientation on the same level of protection as those categories historically covered under Title VII.

Read More >> Second Circuit Court of Appeals Rules That Title VII Prohibits Sexual Orientation Discrimination