Trump Just Made It Easier for Employers and Schools to Discriminate—Legally

President Donald Trump issued a sweeping executive order that eliminates the federal government’s use of disparate-impact liability, a key civil rights enforcement tool that has historically addressed systemic discrimination. The order instructs federal agencies to “deprioritize enforcement” of rules based on this concept and calls for repealing parts of the Civil Rights Act of 1964 that bar discrimination in federally funded programs. Civil rights advocates warn this could have far-reaching consequences in housing, education, employment, and criminal justice. “This effort by the administration to remove this tool sets us back decades,” said Jenny Yang, former chair of the Equal Employment Opportunity Commission.

Disparate-impact liability enables courts to strike down neutral policies that disproportionately harm protected groups, even if there’s no explicit intent to discriminate. Trump’s administration argues it forces “racial balancing” and undermines constitutional principles. But legal experts say the administration’s claims misrepresent the law. “If it were true that disparate-impact liability creates ‘a near insurmountable presumption of unlawful discrimination,’ we might have rid the country of disparities long ago,” said Derek Black, a constitutional law scholar.

The precedent was set in Griggs v. Duke Power Co. (1971), when the Supreme Court ruled that job requirements not linked to business necessity—like a high school diploma or aptitude tests—were illegal if they disproportionately excluded Black workers. That case laid the foundation for eliminating practices like arbitrary height/weight requirements that disadvantaged women and racial minorities. “It really reinforced merit-based hiring, so it’s quite the opposite of requiring racial balancing,” Yang explained.

Yang emphasized that while the federal pullback is significant, individuals can still sue under existing laws and many states are reinforcing their own protections. She also cautioned against narrowing the definition of discrimination to only overt acts of bias: “There is often very significant harm to individuals from organizational practices that are discriminatory, yet very difficult to prove.” While the order alters the course of federal policy, Yang added that Trump cannot override the Supreme Court or Congressional mandates without legal justification: “He can’t just vaguely disregard Congress’s mandate as also interpreted by the Supreme Court.”

Link: Washington Post