Wait, Can He Actually Do That? Part 17: Trump Executive Order Targets Disparate Impact Liability
Yesterday, President Trump signed an executive order titled Restoring Equality of Opportunity and Meritocracy. It aims to eliminate liability for race-neutral (or otherwise relevantly neutral) policies that have a disparate impact based on a protected characteristic. Wait, can he actually do that? The short answer is no. Title VII of the 1964 Civil Rights Act is the federal statute that forbids employment discrimination based on race, color, religion, sex and national origin. It includes a provision, 42 U.S.C. § 2000e-2(k), that expressly recognizes disparate impact liability. An executive order cannot repeal a statute.
The longer answer, however, is "maybe Trump can do this with the aid of a conservative activist Supreme Court." In a concurrence in Ricci v. DeStefano (2009), Justice Scalia warned of a coming
evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution’s guarantee of equal protection? The question is not an easy one.
Why not? Justice Scalia noted that if the government were to command a private actor to engage in illicit discrimination, that would be unconstitutional. Title VII nowhere expressly requires employers to engage in race-based discrimination. However, Justice Scalia and some others worried that in order to forestall disparate impact liability, employers would engage in affirmative action, which, he thought, would be attributable to the government via Title VII and thus unconstitutional.
That argument has a number of problematic steps. At the outset, it must confront the fact that Title VII itself, in 42 U.S.C. § 2000e-2(j), expressly states that it does not require affirmative action. In Steelworkers v. Weber (1973), the Supreme Court held that Title VII nonetheless permits employers to voluntarily undertake affirmative action. Students for Fair Admissions v. Harvard (2023) casts doubt on the continuing vitality of that ruling: It held that Title VI forbids (most) affirmative action by recipients of federal funds; the operative language of Titles VI and VII is quite similar (except that Title VI doesn't cover sex discrimination, which is covered by Title IX); and so one can imagine that in the not-too-distant future, the Court will overrule Steelworkers v. Weber.
However, that would not mean that disparate impact liability is unconstitutional. It would mean only that affirmative action in employment is no longer permissible. To go from that premise to the further conclusion that disparate liability is unconstitutional would require crediting Justice Scalia's worry that employers would surreptitiously give preferences to minority and female employees and applicants to avoid the risk of disparate impact liability and that such behavior in direct contradiction of the Court's new understanding of Title VII (per the extension of SFFA) could be attributed to Title VII.
Could the Supreme Court take all of those dubious steps? Sure. As we've seen in recent years, it can and sometimes does assert all manner of dubious propositions as somehow legally grounded. But unless and until the Court actually takes the dubious steps described above, Trump's executive order has no effect on Title VII disparate impact liability in private litigation.
In the interest of completeness, I nonetheless want to consider one other extremely dubious legal theory that might be the basis for the conclusion that the executive order does not contradict Title VII itself. The disparate impact language of Title VII is in 42 U.S.C. § 2000e-2(k):
(A) An unlawful employment practice based on disparate impact is established under this subchapter only if—
(i) a complaining party demonstrates that a respondent uses a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin and the respondent fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity; or
(ii) the complaining party makes the demonstration described in subparagraph (C) with respect to an alternative employment practice and the respondent refuses to adopt such alternative employment practice.
Aha! Might the crackerjack lawyers in the Trump White House note that subparagraph (C) says "only if" but not "if" or "if and only if"? If Bob says "I will go to the Mets game on Sunday only if I can obtain a reasonably priced ticket," he is not saying that if he can obtain reasonably priced ticket he will definitely go to the Mets game on Sunday. The game might be rained out. Or Bob could catch a cold and not want to leave his home. "B only if A," on this reading, means that A is a necessary condition for B but not a sufficient one.
However, that logic, as applied to subparagraph (A) means only that in addition to satisfying the requirements of subparagraph (A), a disparate impact plaintiff must also satisfy any other legal requirements--such as bringing suit within the statute of limitations. The "only if" argument cannot possibly mean that disparate impact liability itself is somehow optional. Additional statutory context confirms as much. Consider that reference in subparagraph (A) to subparagraph (C), which states:
(C) The demonstration referred to by subparagraph (A)(ii) shall be in accordance with the law as it existed on June 4, 1989, with respect to the concept of “alternative employment practice”.
June 4, 1989 was one day before the Supreme Court decided Wards Cove Packing Co. v. Atonio, which made it harder for plaintiffs to establish a prima facie case of disparate impact and easier for defendants to show that a challenged practice with a disparate impact is nonetheless permissible. The four dissenters argued that in so ruling, the Wards Cove majority had substantially undercut Griggs v. Duke Power Co. (1971), the case in which the Supreme Court had first recognized disparate impact liability. 42 U.S.C. § 2000e-2(k) was enacted as part of the 1991 Civil Rights Act. By restoring the pre-Wards Cove law, it unmistakably endorsed disparate impact liability.
Thus, unless and until the Supreme Court unjustifiably rules disparate impact liability under Title VII unconstitutional--on Justice Scalia's foretold "evil day"--the Trump executive order is ineffective at eliminating it.
Having said that, I should acknowledge that there are at least two aspects of the executive order that could be effective without the Supreme Court's cooperation.
One part of the executive order that can be accomplished immediately: Trump's instruction to federal agencies to "deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability." The executive's prosecutorial discretion provides wide latitude to favor some rather than other enforcement priorities, so this is almost certainly permissible. However, it won't stop private litigation. Presumably, when disparate impact plaintiffs file complaints with the Equal Employment Opportunity Commission (EEOC), it will now reject or sit on those; while that will occasion delay, the statute requiring the filing of an EEOC complaint before suing allows private litigation without EEOC participation after EEOC rejection of a complaint or inaction on it for 180 days.
The other part of the executive order worth mentioning is the instruction to the Attorney General to "initiate appropriate action to repeal or amend the implementing regulations for Title VI" insofar as they treat disparate impact as a violation of the conditions of federal funding. That is indeed something the government can do, but, as the executive order tacitly recognizes, an executive order itself can't rescind regulations. The government will need to go through the rule making process, which includes the possibility of judicial review under the Administrative Procedure Act. At the end of the day, however, this could work, because unlike Title VII, Title VI does not include an express provision covering disparate impact.
Even so, eliminating the disparate impact regulation under Title VI won't affect private litigation because already there's no private litigation involving disparate impact under Title VI. That's because in Alexander v. Sandoval (2001), the Supreme Court held that there is no private right of action to enforce the Title VI disparate impact regulation--so there only ever was going to be executive enforcement. And given that the executive order elsewhere already deprioritizes enforcement of disparate impact cases, eliminating the regulation doesn't add anything.
Should the Trump administration succeed in rescinding the Title VI disparate impact regulation, the only concrete effect would be felt under a future administration that wished to go back to enforcing it; such a future administration would need to first re-adopt such a regulation, which could take time.
But hey. Maybe that's a good sign. It suggests that the Trump administration is concerned about the possibility that in the future there might be a president and administration that care about civil rights!
--Michael C. Dorf
Find all the essays in the Wait, Can He Actually Do That? series here.