Workers have a right to work free from discrimination, and, for decades, federal law has recognized that workplace policies do not have to be intentionally discriminatory to harm workers. The disparate impact standard ensures that workers are protected against employment practices that may appear neutral, but unfairly exclude workers, leaving them with fewer job opportunities and lower pay.
On April 23, 2025, President Trump signed Executive Order 14281 to roll back the use of the disparate impact standard, as part of the administration’s larger attack on civil rights. This executive order could undermine federal enforcement of workers’ civil rights and leave workers more vulnerable to discriminatory practices.
What is “disparate impact”?
Under Title VII of the Civil Rights Act of 1965, employers are prohibited from discriminating against workers on the basis of a protected characteristic: race, color, religion, gender or national origin. But discrimination under the law can appear in various forms. Perhaps the most obvious form of discrimination is “disparate treatment,” where an employer intentionally treats a worker differently because they are part of a protected class under Title VII. For example, an employer who refused to promote a woman because she is a woman may be engaging in disparate treatment discrimination.
In contrast, “disparate impact” discrimination in employment occurs when a workplace policy that does not explicitly discriminate against a specific group disproportionately impacts a protected class under Title VII. For this type of discrimination, the focus is on the impact of the policy, not the employer’s intent, and the employer must prove that the policy has business necessity. For example, an employer policy that requires strength tests may have a disparate impact on women and their ability to obtain certain jobs.
In 1971, the Supreme Court recognized the disparate impact standard, reasoning that Title VII prohibits “not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.” In 1991, Congress codified the disparate impact standard in the Civil Rights Act of 1991. As a result, the Executive Order will likely be challenged in court.
Why is disparate impact standard important for women?
The disparate impact standard is one of our greatest weapons in the fight against structural and systemic racism and sexism. Disparate impact standard has been used to prohibit job requirements on policies that served as barriers for women entering into historically male-dominated occupations, including construction and law enforcement. For example, under the disparate impact standard, courts have invalidated height and weight requirements, strength and physical tests, and prohibitions on bathroom breaks that do not relate to the job.
The disparate impact standard also remains a critical tool for addressing gender pay disparities. Women are often pushed towards certain low-paying occupations and industries, accounting for half of the gender wage gap. The disparate impact standard helps prevent harmful workplace policies that keep women from advancing into higher-paying jobs in select industries. For example, an employer’s height and weight requirement that has nothing to do with the ability to do the job could cut women out from a high-paying job in construction.
What does Trump’s executive order attempt to do?
Trump’s executive order attempts to eliminate the use of the disparate impact standard in “all contexts to the maximum degree,” including across housing, lending, employment, education and healthcare. With respect to employment discrimination, Executive Order 1428:
- Directs federal agencies, including the EEOC, to deprioritize enforcement of all statutes and regulations to the extent they include the disparate impact standard.
- Directs the Chair of the EEOC to review pending investigations and lawsuits that rely on the disparate impact standard and take “appropriate action.”
- Directs federal agencies to identify for elimination regulations and guidance related to disparate impact.
- Directs the Attorney General to determine whether any state laws related to disparate impact are preempted by federal law.
- Directs all agencies to evaluate existing consent judgments and permanent injunctions that rely on theories of disparate-impact standard and take appropriate action.
- Directs the EEOC chair and the Attorney General to issue guidance to employers regarding appropriate methods to promote equal access to employment.
This executive order does not change existing federal law allowing workers to sue their employers based authorizing claims on the disparate impact standard; such a change would have to be made by legislation.
How could rolling back enforcement based on the disparate impact standard undermine workers’ civil rights?
The EEOC, the federal agency responsible for enforcing Title VII and other anti-discrimination laws, has long used the disparate impact standard in its investigations, mediation, settlement, and litigation on behalf of workers. But under the executive order, the EEOC may choose not to pursue workers’ claims or may dismiss pending cases that rely on disparate impact. When the EEOC dismisses pending cases, workers have only 90 days to file their case in court. For many workers, the costly, time-consuming and overwhelming litigation process may dissuade them from continuing to defend their rights.
The executive order also appears to encourage the EEOC to undo settled cases where the disparate impact standard was used. This includes existing court-approved agreements between the agency and an employer to settle allegations of discrimination. These consent decrees often provide relief to workers and prohibit employers from using specific discriminatory practices in the future. This attempt to reintroduce discrimination in cases where workers have already been provided with justice is an alarming attack on civil rights.
The EEOC’s rollback in enforcement could leave workers vulnerable to discriminatory policies and forced to address discrimination alone.
Can workers still use the disparate impact standard?
This executive order does not change existing federal law allowing workers to sue their employers based on the disparate impact standard; such a change would have to be made via legislation.
But before workers can go to court to sue their employers for discrimination under Title VII, they first must file a charge of discrimination with the EEOC. The agency may investigate, attempt mediation and settlement or pursue litigation on behalf of the worker. Without EEOC enforcement, workers can only rely on bringing private claims, which can be costly, time-consuming and overwhelming to navigate.
Former leaders of the EEOC have expressed their hope and expectation that private attorneys and local and state governments step up to support workers in bringing disparate impact claims.
