Recent Legal Developments in Disparate Impact Liability
The evolving nature of executive orders has significantly impacted disparate impact enforcement. Recent administrations have utilized executive orders to shape the enforcement landscape, leading to substantial changes in how disparate impact liability is applied.
Executive Orders and Policy Changes
On April 23, President Trump issued an Executive Order entitled “Restoring Equality of Opportunity and Meritocracy.” This order aimed to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.” Specifically, Section 3 and Section 5 of the Executive Order directed the repeal or amendment of certain regulations that imposed disparate-impact liability on recipients of federal funding under Title VI, such as universities, nonprofits, and certain contractors.
The impact of this Executive Order was significant, as it sought to reduce the role of disparate impact liability in various contexts. The order revoked the “Presidential approval” of regulations that required affirmative action by recipients of federal funding.
Executive orders have been a crucial tool in shaping disparate impact enforcement. The Trump administration’s orders were designed to limit disparate impact liability and enforcement, directing federal agencies to deprioritize disparate impact enforcement and review existing regulations.
In contrast, the Biden administration reversed many of the Trump-era policies, reinstating broader disparate impact enforcement. This shift highlights the significant role that executive actions play in shaping the enforcement landscape.
Policy changes at the agency level have also contributed to the evolving compliance landscape. New guidance documents and enforcement priorities have created a complex environment for employers to navigate.
Furthermore, legislative proposals affecting disparate impact liability continue to emerge at both federal and state levels. Employers must remain informed about these developments to adapt their compliance strategies accordingly.
The role of the Attorney General and other agencies has been pivotal in implementing these changes. As policy continues to evolve, understanding the impact of these changes on disparate impact liability will be crucial for employers.
Industry-Specific Considerations
Disparate impact liability affects various industries differently, with education and public sectors facing distinct issues due to their unique roles and missions.
