Trump Takes Aim at ‘Disparate-Impact Liability’ in Order Seeking to Return Merit to Hiring

President Donald Trump an executive order on Thursday to end “disparate-impact liability,” which essentially compels employers to consider race when hiring or risk legal penalties, and restore meritocracy to hiring in areas where the federal government has discretion. The goal of the action, his order reads, is to “guarantee equal opportunity, not equal outcomes.”

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A bedrock principle of the United States is that all citizens are treated equally under the law.  This principle guarantees equality of opportunity, not equal outcomes.  It promises that people are treated as individuals, not components of a particular race or group.  It encourages meritocracy and a colorblind society, not race- or sex-based favoritism.  Adherence to this principle is essential to creating opportunity, encouraging achievement, and sustaining the American Dream.

But a pernicious movement endangers this foundational principle, seeking to transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics, regardless of individual strengths, effort, or achievement.  A key tool of this movement is disparate-impact liability, which holds that a near insurmountable presumption of unlawful discrimination exists where there are any differences in outcomes in certain circumstances among different races, sexes, or similar groups, even if there is no facially discriminatory policy.

President Trump

Disparate-impact liability was recognized as part of the Civil Rights Act of 1964 by the U.S. Supreme Court following the Griggs v. Duke Power case.

It established a “near insurmountable” presumption of discrimination if there is any difference in outcome found between races during hiring or other processes, even if each applicant is given the same opportunity for success and evaluated on the same rubric regardless of race, sex, or other protected characteristic.

“Disparate-impact liability all but requires individuals and businesses to consider race and engage in racial balancing to avoid potentially crippling legal liability.  It not only undermines our national values, but also runs contrary to equal protection under the law and, therefore, violates our Constitution,” said Trump.

In his order, the president pointed out that disparate-impact liability has stopped employers from hiring based on merit, preventing them from best meeting the needs of their companies and depriving skilled job applicants of their opportunities for success.

“It is the policy of the United States 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,” said Trump.

In service of the new policy, the president rescinded presidential approval from two-decade-old actions that concerned disparate impact liability penalties for recipients of federal funds.

Trump ordered all federal agencies to deprioritize the enforcement of any laws or statutes that apply to disparate-impact liability.

Attorney General Pam Bondi is instructed to initiate the repeal of all enforcement regulations surrounding disparate-impact liability, as well as all existing state and federal laws related to the practice, and to explore possible methods for their repeal.

Current lawsuits involving disparate impact will be reviewed and treated in light of the new U.S. policy, and are likely to be dismissed.

This order came alongside a similar one aimed at ending racial discrimination in school discipline, ending the legal liability for schools that disproportionately punish one race for infractions, and allowing school discipline to once again operate under colorblind principles.