Trump issues order barring use of disparate impact liability

On April 23, 2025, President Trump issued Executive Order (EO) 14281, Restoring Equality of Opportunity and Meritocracy, which seeks to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” Disparate impact legal theory is based on the proposition that seemingly neutral policies or practices may disproportionately and negatively affect a protected class. The theory focuses on outcomes resulting from policies as opposed to the intent behind the policies.

Disparate impact theory’s origins

Disparate impact theory arose originally in the Supreme Court’s 1971 decision in Griggs v. Duke Power Co. in which the Court found that Duke Power’s policy mandating employees in its highest paying departments either possess a specific level of education or pass an intelligence test as a condition of employment.

The Court ruled the policy was unlawful under Title VII of the Civil Rights Act of 1964 because it wasn’t “reasonably related” to the job and had a disparate impact on the Black community. It was incorporated into Title VII by the 1991 Amendments.

Trump’s claims

EO 14281 calls the theory “contrary to equal protection under the law” and describes it as creating a “near insurmountable presumption” of unlawful discrimination. It further claims that it requires employers to affirmatively consider race or other protected characteristics to avoid “crippling legal liability” that is “wholly inconsistent with the Constitution.”

The EO goes on to, among other items: