On April 23, the White House published an executive order titled “Restoring Equality of Opportunity and Meritocracy,” addressing the principle of equal opportunity in the U.S., and emphasizing “meritocracy and a colorblind society.” The order critiques disparate-impact liability, which it describes as a tool that presumes unlawful discrimination based on differences in certain outcomes among races, sexes, or similar groups, even without facially discriminatory intent or policy. Following its criticism, the order revokes prior presidential approvals of DOJ Title VI regulations and directs federal agencies to deprioritize enforcing statutes and regulations that include such liability. The Attorney General is tasked with initiating actions to repeal or amend existing regulations contemplating disparate-impact liability as well as providing reports to the President on existing regulations imposing such liability. The order further mandates review of current investigations and proceedings relying on disparate-impact theories and calls for evaluations of consent judgments and permanent injunctions based on these theories. Additionally, it directs future agency actions to address preemption of state laws imposing disparate-impact liability and provides guidance to employers on promoting equal employment access.
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