On April 23, President Trump issued a new executive order that targets Title VI and Title VII of the Civil Rights Act of 1964 in a move that experts warn could weaken discrimination protections for workers.
The order took aim at disparate-impact liability rules at government agencies and any organization that receives federal funding and appears to be the administration’s latest effort to counter diversity, equity, and inclusion policies across the government, as well as with private employers.
It directs the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) to stop enforcing all laws and regulations that include disparate-impact liability, such as those under Title VII.
Disparate-impact liability is meant to prevent policies and procedures that disproportionately affect a particular group, even if those policies do not intentionally discriminate or appear neutral at first glance. For example, an employer holding a mandatory meeting every Sunday morning, while on its face may not appear discriminatory, would impact Christian employees who are more likely to attend church on Sundays.
The administration asserted that disparate-impact liability “all but requires individuals and businesses to consider race” and doesn’t allow businesses to make employment decisions based on “merit.” However, civil rights experts point out that disparate-impact liability helps advance equality and reduces covert discrimination.
While the order outlined ways it disagrees with disparate-impact rules, it still doesn’t eliminate Title VI or nullify the law, according to Ayesha Whyte, managing partner at Dixon Whyte, a DC-area law firm.
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“An executive order can never override what the law is,” Whyte told HR Brew, noting that the executive branch instead changes if and how some laws are enforced. “It’s weakening the protections against systemic discrimination.”
While private lawyers may still take on disparate-impact cases moving forward, the EEOC will not pursue these cases on behalf of workers. “Not every person can afford to hire a private lawyer to fight these battles,” Whyte said. “The real cut of this is that these places that are supposed to be protecting you and fighting for you against things are kind of having their hands tied.” She also noted that the executive order would disproportionately impact people who cannot afford to hire a private attorney.
“Trump once again gets the law wrong when it comes to equal opportunity,” ReNika Moore, director of the ACLU Racial Justice Program, told HR Brew in a statement.
“Courts —including the Supreme Court—have consistently recognized and upheld the application of disparate impact liability in a variety of contexts. It’s a well-established tool that allows courts to stop policies and practices that unfairly and without a legitimate reason exclude people because of their race, gender, disability or other legally protected characteristic.”