Last week, President Trump issued an executive order titled “Restoring Equality of Opportunity and Meritocracy” in which the White House eliminates enforcement of disparate-impact liability, which since the early 1970s has allowed courts to halt policies and practices that seem to exclude people based on characteristics such as race, gender and disability. The order could affect how federal fair lending laws are enforced.
Disparate-impact liability, according to the Trump administration, has “handcuffed” employers by requiring them to consider race and “racial balancing” to avoid legal liability, which they claim threatens meritocracy. Opponents of the move say it will make it harder to shield people from exclusionary policies in areas such as housing, employment, education and criminal justice.
The EO directs federal agencies to “deprioritize enforcement” of statutes and regulations that include disparate-impact liability. It also instructs the U.S. attorney general to repeal key components of the Civil Rights Act of 1964 that bar any program receiving federal financial support from discrimination based on “race, color or national origin.”
Editor’s note: ABA policy experts created a members-only staff analysis of the EO. Members will have to log in to view.
