Trump deprioritizes disparate impact discrimination: What it means for NV businesses

The first 100 days of the second Trump administration have seen a flurry of Executive Orders (EOs) on a range of issues, with many aimed at rolling back longstanding civil rights, affirmative action, and antidiscrimination policies and practices across the federal government. An order from late April continues this pattern, taking aim at disparate impact discrimination. Although the order will have limited immediate effect on Nevada businesses, you should still consult with counsel about the ongoing risks.

Theories of discrimination

As many Nevada business owners are aware, both federal and state antidiscrimination laws are comprised of multiple theories of discrimination. The most commonly asserted allegation—disparate treatment discrimination—occurs when a business takes an adverse employment action against an employee because of their race, sex, sexual orientation, age, religion, disability, or other protected classification.

Another form of discrimination—known as disparate impact discrimination—differs from disparate treatment discrimination in that it doesn’t require intentional misconduct by the employer. Rather, disparate impact discrimination asks if an employment practice that is neutral on its face nevertheless has a negative impact on protected groups.