On Wednesday, President Donald Trump signed an executive order barring federal agencies from investigating or prosecuting employment discrimination using the disparate impact concept. Most discrimination claims allege that an employer intended to discriminate against someone based on their membership in a protected classification. Disparate impact claims do not require a demonstration of discriminatory intent. Instead, the employer violates the law when it adopts a policy that is neutral on its face but has the effect of disproportionately screening out members of the protected class.

For example, say an employer adopts a policy requiring all applicants to be six feet or taller to qualify for employment. While the policy does not mention gender, it has the effect of disqualifying most female applicants from employment. Under disparate impact, the employer would have to demonstrate business reasons for the policy, as well as show there were no alternative policies that could accomplish those goals without the discriminatory effect. Under the new executive order, the charging party would have to claim and eventually prove that the employer adopted the policy to intentionally discriminate against women.

The Equal Employment Opportunity Commission has used disparate impact in Title VII and ADA investigations and litigation for decades. Based on the order, the EEOC would cease all charge investigations based on disparate impact and dismiss all pending litigation using this theory. However, plaintiffs bringing private suits could still claim disparate impact, and the executive order does not impact legal precedent recognizing the validity of such claims. The order itself may also face legal challenges. 

If an employer is currently facing an EEOC charge or lawsuit brought by the EEOC involving disparate impact claims, it may want to contact the investigator or the EEOC lawyer, requesting dismissal based on the order. The order also applies to consent orders, meaning that the employer can seek to terminate any remaining remedial obligations that arose from disparate impact claims.

Disparate impact claims can be difficult for individual employees to develop due to the need to use statistical analysis. Claimants wishing to sue for disparate impact would still have to file EEOC charges, but presumably the agency will dismiss such claims and issue a right-to-sue letter without investigating the allegations. Absent claims of intentional discrimination, the new order means that government investigators are powerless to review or prosecute claims. 

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