An executive order issued by President Trump signifies a major reversal of protections from discrimination and may have significant ramifications for US workplaces.
The executive order eliminates “disparate-impact liability” and has been condemned by legal and civil rights advocates. It was published under the title Restoring Equality of Opportunity and Meritocracy.
Disparate-impact liability allows people to challenge actions that disproportionately harm protected groups despite appearing neutral. To succeed in such cases, those affected do not have to prove deliberate discrimination.
Trump’s order directs federal agencies to immediately deprioritise the enforcement of laws where policies have discriminatory effects and instructs the US attorney general to begin “repealing or amending” regulations implementing Title VI of the Civil Rights Act 1964.
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Title VI prohibits discrimination based on race, colour or national origin in programmes or activities receiving federal financial assistance. This means that anyone who participates in or benefits from a programme that receives federal funding is protected from discrimination on these grounds
Fatima Goss Graves, president of the National Women’s Law Center, attacked the policy: “This executive order instructs the government to stop enforcing key civil rights protections – in the workplace, at schools, and in all aspects of our society – and to rewrite regulations that have protected the rights of all people for decades.
“This order is part of Donald Trump’s ongoing efforts to dismantle our freedoms and roll back our rights. He hates that civil rights laws give us the power to stand up to bullies like him. But a president does not have the power to take away core civil right protections from the people of this country with a flick of his wrist.”
Legal experts have also condemned the order, stating it misconstrued existing laws.
The directive requires all federal agencies to review pending cases and consent decrees based on disparate impact within 90 days and “take appropriate action”.
The order portrays “disparate impact” as being part of a “pernicious movement” endangering the bedrock of the American Dream: that all citizens are treated equally under the law, a principle that “guarantees equality of opportunity, not equal outcomes”.
Disparate impact went against the promise “that people are treated as individuals, not components of a particular race or group,” the document stated. It added “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.”
It stated: “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 spectre that such a process might lead to disparate outcomes, and thus disparate-impact lawsuits.
The legal foundation for disparate impact cases was cemented in 1971, when a North Carolina power plant was legally challenged over its requirement for employees to possess a high school diploma or pass an intelligence test as a condition of employment for certain positions.
Given the lack of civil rights, education and history of enforced disadvantage, black people who wished to apply were disproportionately excluded, according to the complaint. When the case reached the US Supreme Court, it held that if a practice excluded minorities and that practice cannot be shown to be related to job performance, it should be prohibited, even if the employer lacked discriminatory intent.
The decision established the legal foundation for the disparate impact theory of discrimination and became a landmark case in the area of civil rights.
Ayesha Whyte, managing partner at Dixon Whyte, a DC-area law firm, told online publication HR Brew that the order could not change the law, but could affect how some laws are enforced, and added: “It’s weakening the protections against systemic discrimination.”
While private lawyers may still take on disparate-impact cases moving forward, the US Equal Employment Opportunity Commission, a federal agency, could no longer pursue these cases on behalf of workers.
“Not every person can afford to hire a private lawyer to fight these battles,” Whyte said. “The real cut of this is that these places that are supposed to be protecting you and fighting for you against things are kind of having their hands tied.”
Conservative publication City Journal saw the executive order as a victory for meritocracy. A blog post stated it was helping to restore the 1964 Civil Rights Act to its “original meaning”. It added: “Every mainstream institution is desperate to hire and promote as many remotely qualified blacks as possible; it is white males who are disfavored and excluded from positions based on their skin colour.”
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