On Wednesday, April 23, 2025, President Trump signed an Executive Order going after disparate impact liability under various titles of the Civil Rights Act of 1964 as amended by the Civil Rights Act of 1991. The Executive Order (Restoring Equality of Opportunity and Meritocracy) also calls for the Attorney General to evaluate whether there can be federal preemption of state laws with disparate impact liability.
Among the mandates of the Executive Order is de-prioritization of enforcement of employment practices disparate impact liability, which is based in statute–specifically the Civil Rights Act of 1991. Disparate impact liability establishes that if a facially neutral employment practice has a disparate impact on the basis of race, religion, sex, or national origin, the employer must show that the practice is job related for the position and consistent with business necessity.
Congressional vote on the Civil Rights Act of 1991? 93-5 (Democrats 55-0; Republicans 38-5) in the Senate. 381-38 (Democrats 252-5; Republicans 128-33) in the House. Which President signed the bill? Republican George H. W. Bush.
The new Executive Order states that disparate impact liability is contrary to equality of opportunity and meritocracy.
What Types of Things are Prevented by Disparate Impact Liability?
Making a lifting test part of the criteria for being hired as an attorney. Requiring knowledge of calculus and trigonometry for a custodial position.
Are these meritocratic criteria for these positions? They certainly are facially neutral. But they are anything but meritocratic. And that’s the point. Disparate impact liability never has prohibited facially neutral practices that have a different impact by race, religion, sex, or national origin if those practices are related to the job.
Disparate impact liability always has been about making sure that employment decisions are based on job-related MERITOCRATIC criteria. Moreover, it is grounded in statute. An Executive Order can’t revoke a congressional statute.
Want to hear more from the team at Roffman Horvitz?
Catch them at DirectEmployers 2025 Annual Meeting & Conference (DEAMcon25) in Scottsdale, Arizona as they share the latest updates as we reach the 120 day mark for additional guidance on Executive Order 14173.
THIS COLUMN IS MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF THE CURRENT LAW AND PRACTICE RELATING TO OFCCP. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. COMPANIES OR INDIVIDUALS WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
About the Guest Author
Joshua S. Roffman
Managing Attorney, Roffman Horvitz
Joshua S. Roffman is an attorney who advises and assists employers with using data and statistical tools to evaluate their employment practices. He has been advising federal contractor employers about compliance with federal and state equal employment opportunity and “affirmative action” requirements for over twenty years. He currently is guiding employers in assessing their DEIA and similar programs for risk mitigation and compliance with nondiscrimination laws.
