The President issued a new Executive Order (EO) titled Restoring Equality of Opportunity and Meritocracy. This EO seeks to eliminate disparate impact liability under the Civil Rights Act. Disparate impact is a legal theory in civil rights law that allows policies to be challenged if they cause a disparate impact on a protected class even if they are “facially neutral.” In a recent memo, Gibson Dunn analyzes how the EO targets disparate impact liability:
“Section 3 and Section 5 of the Executive Order direct the repeal or amendment of certain regulations that impose disparate-impact liability on, and require affirmative action by, recipients of federal funding under Title VI, such as universities, nonprofits, and certain contractors. Section 3 states that it is revoking the ‘Presidential approval’ of these regulations. (Title VI provides that no ‘rule, regulation, or order’ implementing the statute ‘shall become effective unless and until approved by the President.’ 42 U.S.C. § 2000d-1.) And Section 5(a) directs the Attorney General to ‘initiate appropriate action to repeal or amend’ those regulations.”
Presently, the EO only affects the government’s views and implementation of disparate impact policy. The memo notes that, for the time being, private plaintiff litigation will not be directly impacted – although this EO could provide the basis for courts to revisit disparate impact precedents. Additionally, the EO is likely to be challenged in court by civil rights groups and Democratic Attorneys General who take issue with any attempt by the administration to preempt state anti-discrimination laws.
Our members can learn more about ESG litigation trends here.
If you aren’t already subscribed to our complimentary ESG blog, sign up here for daily updates delivered right to you.
DID YOU KNOW … we are much more than just blogs. Check out our range of resources and become a member today.
