Executive Order Effectively Eliminates Disparate Impact Liability in Federal Employment Discrimination Cases

On April 23, 2025, President Trump issued an Executive Order (EO) titled Restoring Equality of Opportunity and Meritocracy that effectively eliminates the use of disparate impact theory in federal employment discrimination cases. This significant policy shift marks a fundamental change in how federal anti-discrimination laws, including Title VII of the Civil Rights Act, will be enforced regarding workplace discrimination claims.

Understanding Disparate Impact vs. Disparate Treatment

Disparate Impact

Disparate impact occurs when a neutral workplace policy or practice disproportionately harms members of a protected class, even if there is no intent to discriminate. This theory often involves statistical evidence showing adverse effects on groups based on race, sex, ethnicity, or other protected characteristics.

Example:An employer implements a minimum height requirement for safety reasons, but the policy disproportionately excludes women and certain ethnic groups with statistically shorter average heights.

Disparate Treatment

Disparate treatment involves intentional discrimination where an employer treats someone differently because of their protected status.

Example:A manager consistently promotes younger employees over older ones solely based on age, regardless of qualifications.

Key Provisions of the Executive Order

• The EO declares it the policy of the United States to eliminate disparate impact liability “to the maximum degree possible” to avoid violating constitutional principles and federal civil rights laws.

• It rescinds previous presidential approvals of DOJ regulations that impose disparate impact liability.

• The Attorney General and EEOC Chair are ordered to review and take action on all pending investigations or lawsuits relying on disparate impact theory.

• Federal agencies must evaluate and potentially amend existing consent judgments and injunctions based on disparate impact theories.

• The EO calls for assessing whether federal law preempts state laws that continue to apply disparate impact liability.

Implications for Employers

• This EO signals a shift toward emphasizing merit-based employment practices over demographic-based considerations in federal employment law enforcement.

• Federal enforcement actions based solely on statistical disparities may decrease.

• However, legal challenges to the EO’s provisions are possible, and the interplay between federal and state laws could result in varying standards.

• Employers are encouraged to review internal hiring, promotion, and testing policies to focus on qualifications and merit, reducing risk of discrimination claims.

Conclusion

The April 2025 Executive Order represents a major development in federal employment discrimination law, with substantial effects on enforcement and employer obligations. Florida and other employers should stay vigilant, ensure their policies comply with evolving legal standards, and consult legal counsel when assessing employment practices.