By Robert G. Brody and Fintan S. Lalor
President Trump recently issued an Executive Order (EO) titled “Restoring Equality of Opportunity and Meritocracy” which aims to eliminate disparate-impact liability in the United States. Disparate-impact liability is a legal concept that holds employers accountable for policies or practices that harm a protected group even though it is worded in a neutral way.
For example, a rule requiring successful applicants to be six feet tall is neutrally worded but has a disparate-impact on women since many more women are under six feet tall than are men. Significantly, disparate-impact liability differs from disparate treatment liability in that disparate-impact does not require proof of an intent to discriminate. Removing this theory of liability will make proving cases of discrimination much more difficult in many cases.
The Executive Order
The purpose of President Trump’s EO is “to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” To carry this out, the EO orders:
- The Attorney General and Equal Employment Opportunity Commission (EEOC) Chair to assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law that relies on disparate-impact liability and to take appropriate action with respect to the EO within 45 days;
- All agencies to deprioritize enforcement of statutes and regulations to the extent they include disparate-impact liability; and
- The revocation of the Presidential approvals of certain regulations that prohibit disparate-impact discrimination under Title VI of the Civil Rights Act.
What now?
This latest EO is yet another example of the shifting enforcement priorities under the current Administration. Significantly, notwithstanding this EO, employees may still bring disparate-impact claims in private lawsuits against companies. Consequently, employers should continue to assess whether their practices and policies will have a disproportionate impact on protected groups. Moreover, employers should continue to monitor legal developments in this complicated area of the law and consult competent counsel for guidance.
Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.
