Why it Matters that Trump is Attacking “Disparate Impact” Liability
Most people understand intentional discrimination. It could be when you don’t get the job because the hiring manager is looking for someone who looks like them. But there’s another crucial avenue for establishing discrimination claims that has nothing to do with individual beliefs or motivations. This avenue is known as "disparate impact” liability, and it has been critical for ensuring equitable access and treatment in workplaces, schools, and housing.
Under disparate impact liability, even if a policy does not explicitly consider race, gender, or another protected characteristic, a policy violates the law if it has a disproportionately negative effect on a protected class that isn't justified by any legitimate business purpose.
A classic example is requiring job applicants to pass a test assessing skills unrelated to the actual job requirements. Even though nothing about the test is explicitly discriminatory, such as test would violate the law if it disproportionately screens out individuals with protected characteristics who are otherwise qualified.
Disparate impact liability has been firmly established in our caselaw since 1971. However, earlier this week, President Trump issued an executive order targeting this doctrine. With respect to employment-related matters, the Equal Employment Opportunity Commission has been charged with reviewing its pending matters that are based on disparate impact theory and take action consistent with the executive order, which aims to "eliminate the use of disparate-impact liability in all contexts to the maximum degree possible."
Bottom line: Trump’s new executive order just made it harder for employees to establish discrimination claims at the EEOC and potentially undermines decades of progress in workplace equity.
How J.B. Andrews Law Can Help
If you believe you have experienced workplace discrimination, whether through intentional discrimination or because of a policy that is having a disparate impact on employees with protected characteristics, J.B. Andrews Law, PLLC is here to help. Despite the executive order’s goal to make disparate impact claims harder to establish, the firm remains committed to fighting for workplace equity and justice, and the executive order does not effect enforcement of state and local laws that provide for disparate impact liability.
Contact J.B. Andrews Law, PLLC today for a free consultation to discuss your situation and explore your legal options. Don’t let recent policy changes prevent you from seeking the justice you deserve.