Skip to main content
The Latest /
Workers’ Rights

Trump Executive Order Threatens to Devastate a Key Civil Rights Protection

A group of five workers pull a rope

Another day another dangerous and concerning executive order. This time Trump’s targeting civil rights protection and enforcement practices that have been in place for more than 50 years. Titled Restoring Equality of Opportunity and Meritocracy,(link is external) this executive order is aimed at a principle called disparate impact which has become a legal staple in this country. Let’s look at what disparate impact is, what this executive order says about it, and why this order is so dangerous. 

What is Disparate Impact? 

In the 1970s, the Supreme Court issued a unanimous ruling in a case called Griggs v. Duke Power Co. The ruling made it clear that it violates the 1964 Civil Rights Act for an employer to adopt a job rule, even if it is neutral on its face, which has a significant negative impact on a minority group unless it is justified by a business necessity. That means an employer cannot impose a rule that could harm a protected minority group even if that was not the intention of the rule.  

For example, from the Griggs case, an employer cannot require aptitude tests for higher-paying positions if the application of those tests would disparately impact a minority group, which it did when Duke Power Co. implemented tests which white employees passed at a much higher rate than Black employees. Though not the intent, Black employees were disparately impacted by being relegated to lower-paying positions at the company when there was no business necessity for the requirement. That was deemed illegal by the Court. 

What’s in the order? 

This order took direct aim at the disparate impact principle, saying that the order is intended “… to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible to avoid violating the Constitution, Federal civil rights laws, and basic American ideals.” The order also claims that “On a practical level, disparate-impact liability has hindered businesses from making hiring and other employment decisions based on merit and skill, their needs, or the needs of their customers because of the specter that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.”  

Despite more than 50 years of precedent from a unanimous Supreme Court, the Trump administration is striking out against an important concept in both law and business. It does this by repealing regulations on disparate impact liability in employment federal programs, and by directing federal agencies to deprioritize enforcing civil rights laws that rely on disparate impact and review all pending cases that employ that theory. 

Why is this order so dangerous? 

Particularly because it is often difficult to prove discriminatory intent, the disparate impact principle has been crucial to civil rights enforcement in employment, housing, education, and other areas with respect to racial minorities, women, and other protected groups. This order will make it difficult if not impossible to protect the civil rights of protected people when discriminatory intent cannot be clearly proven. That means women and minorities will face hardships in the workplace that disproportionately affect them without the legal recourse of disparate impact lawsuits. This order opens the flood gates to attacks on the rights of women and minorities. 

With one swipe of the pen, Trump has diminished one of the key ways civil rights are protected in this country. This executive order will cause real harm to real people in the exact way disparate impact regulations were intended to prevent.