The White House has issued an Executive Order aimed at eliminating the use of disparate-impact liability in various contexts. The order highlights a commitment to equality of opportunity and meritocracy, arguing that current applications of disparate-impact liability deviate from these principles.
The Executive Order states, "A bedrock principle of the United States is that all citizens are treated equally under the law. This principle guarantees equality of opportunity, not equal outcomes." It suggests that disparate-impact liability undermines American values by effectively requiring racial balancing and considering factors such as race and sex in decision-making processes, which the order argues is contrary to constitutional rights and the principle of treating individuals equally.
The order revokes previous Presidential approvals of certain Department of Justice regulations from 1966 and 1973 under 42 U.S.C. 2000d-1, aiming to minimize the enforcement of disparate-impact liability. It directs federal agencies to deprioritize laws that mandate disparate-impact liability and calls for the Attorney General to initiate actions to repeal or amend current regulations enforcing it.
To ensure the order's implementation, the Attorney General, along with leaders of other relevant agencies, is tasked with reviewing all pending investigations and lawsuits relying on disparate-impact theories and reassessing existing consent judgments and injunctions based on such theories. The order also seeks to determine whether federal law preempts state laws that impose disparate-impact liability and to issue guidance that promotes equal employment access.
Despite its comprehensive approach, the order contains a severability clause that maintains the effectiveness of other sections if any part is found invalid. Additionally, it clarifies that the order does not create any legally enforceable rights against the U.S. government or its personnel.
The order, signed by President Donald J. Trump, is part of an ongoing policy effort to redefine civil rights enforcement priorities in a way that prioritizes individual merit and opportunity over outcome-based assessments.
