Trump's Latest Executive Order Targets 54 Years of 'Disparate Impact' Policies

On Wednesday, President Donald Trump signed a significant new executive order aimed at eliminating the use of disparate impact liability in various areas of law to promote equal treatment.

The order describes disparate impact liability as “a legal theory holding that differences in outcomes among races, sexes, or similar groups indicate unlawful discrimination, even without discriminatory intent or policies.”

Footage of Trump signing the order in the Oval Office was shared by Rapid Response 47:

As noted by Justia, the concept of disparate impact was cemented by the Supreme Court’s 1971 decision in Griggs v. Duke Power Co., which held that even if an employer does not intend to discriminate, hiring practices that disproportionately disadvantage certain groups can still be unlawful.

This ruling essentially removed the need to prove discriminatory intent, allowing employers to be accused of racism or sexism if certain practices were deemed to have a negative impact on specific groups—even if those practices were implemented in good faith.

Trump’s order argues that this legal theory “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines.”

The order outlines several key steps moving forward:

“The Order revokes presidential actions that approved of disparate-impact liability and sets in motion broader reform,” the White House stated. “It directs all agencies to deprioritize enforcement of statutes and regulations that include disparate-impact liability.”
Additionally, the order “instructs the Attorney General to repeal or amend all Title VI (racial nondiscrimination) regulations that contemplate disparate-impact liability.”

It also “directs the administration to assess all pending investigations, lawsuits, and consent judgments that rely on a theory of disparate-impact liability and take appropriate action.”

With this executive order potentially clashing with the longstanding Griggs precedent, questions arise about whether a legal challenge may be on the horizon.

Today’s Supreme Court is not the same as the one that decided Griggs over five decades ago.

Although some conservatives have expressed concern over recent rulings—such as Justice Amy Coney Barrett siding with liberal justices on certain matters of executive authority—the Court made a historic move just three years ago by overturning Roe v. Wade in the Dobbs v. Jackson case, widely seen by conservatives as correcting a serious judicial error.

Should this new order eventually prompt a review of Griggs, many on the right are hopeful the current Court will issue what they consider to be a more constitutionally faithful decision.