Yesterday, President Trump issued an Executive Order (“EO”) entitled “Restoring Equality of Opportunity and Meritocracy,” which aims to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”
The EO states that disparate-impact liability, a theory of discrimination allowing individuals to pursue claims based on a policy or practice that is facially neutral in nature and application, but that nevertheless has an adverse impact on a protected class, “runs contrary to equal protection under the law” and “has hindered businesses from making hiring and other employment decisions based on merit and skill. . . .”
In addition to listing a variety of directives, the EO also orders the Attorney General and the Chair of the EEOC to “jointly formulate and issue guidance or technical assistance to employers regarding appropriate methods to promote equal access to employment regardless of whether an applicant has a college education, where appropriate.”
This EO falls in line with the administrations other EO’s and policies to advance a view of equal opportunity based purely on a “meritocracy.” While the ultimate impact is unknown at this point, and the judiciary is not required to follow executive orders, this EO could radically change the existing interpretations of federal civil rights law to focus only on intentional discrimination, narrow available legal claims, and change how agencies such as the EEOC operate. We will continue to provide updates in this area.
See here for the full text: Restoring Equality of Opportunity and Meritocracy – The White House