Executive Order Directs Federal Agencies to Deprioritize Enforcement based on Disparate-Impact Liability

In a recent executive order, the President directed that — given limited resources for enforcement, the order’s newly stated policy to eliminate disparate-impact liability, and the asserted illegality of disparate impact liability — executive agencies must “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”

According to the order, disparate-impact liability is inconsistent with the Constitution’s guarantee of equal treatment under the law because it favors certain classes of people, rather than guarantee equality of opportunity to all people. 

The order directs the following actions:

• Within 45 days of the order’s issuance, the Attorney General must evaluate all pending investigations, civil suits, and positions taken in ongoing matters under federal civil rights law that rely on a theory of disparate impact liability and take appropriate action to effectuate the order’s stated policy with respect to them.
• Within 45 days of the order’s issuance, the heads of all agencies responsible for the enforcement of ECOA, the Fair Housing Act, or other laws prohibiting unfair, deceptive, or abusive acts or practices must evaluate pending proceedings that rely on disparate-impact liability and take appropriate action to effectuate the order’s stated policy with respect to them.
• Within 90 days of the order’s issuance, every agency must evaluate all existing consent judgments and permanent injunctions that rely on a theory of disparate-impact liability and take appropriate action to effectuate the order’s stated policy with respect to them.
• The Attorney General must take action to repeal or amend any regulation implementing Title VI to the extent that such regulation includes disparate-impact liability.
• The Attorney General must determine whether any federal law preempts any state law that imposes disparate-impact liability based on a federally protected characteristic (e.g., race, age, or sex) and take appropriate action to effectuate the order’s stated policy with respect to such laws.
• The Attorney General and the EEOC Chair must jointly develop and issue guidance to employers concerning the promotion of equal access to employment, regardless of whether an applicant has a college education.