Examining the status of disparate impact claims in 2026

President Trump’s April 23, 2025, Executive Order (EO) directs federal agencies to deprioritize enforcement of statues and regulations that permit recovery using disparate impact liability. But how does this departure from longstanding federal policy affect employers?

How have agencies responded?

EEOC. The Equal Employment Opportunity Commission (EEOC) hasn’t issued official guidance on the matter, but news outlets report that an internal memo noted the agency will no longer pursue complaints based on disparate impact. The EEOC enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

Previously, the EEOC determined employer liability based on two theories, disparate impact or disparate treatment.

A disparate treatment claim requires showing that individuals are receiving unequal treatment despite their similar or same qualification because of their protected characteristics. For example, an employer considering job applicants with comparable criminal records is shown to hire males with criminal records while rejecting female applicants because of their criminal records.