Why the Trump Administration’s Retreat from Disparate Impact Doesn’t Fundamentally Change the Legal

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When:  Jun 25, 2025 from 02:00 PM to 03:00 PM (ET)
On April 23, 2025, President Trump issued Executive Order 14281 (“Restoring Equality of Opportunity and Meritocracy”), which directed all federal agencies including the Equal Employment Opportunity Commission (“EEOC”) and Department of Justice to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” Disparate impact employment cases allege that a neutral and objective employment practice is unlawful if its effect is different based on any characteristic protected by Title VII or other civil rights laws, and the practice cannot be shown to be job-related and consistent with business necessity. Such cases often use statistical evidence as the basis for identifying the claim.
 
Disparate impact cases are not the only employment discrimination cases that use statistical evidence. Cases alleging a pattern and practice of disparate treatment also rely on statistical evidence. Indeed, the United States Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) nearly always pursued its investigations pursuant to a pattern and practice of disparate treatment theory rather than a disparate impact theory. The EEOC’s current leader also has indicated that the Commission intends to use statistical evidence to demonstrate that DEI programs engage in a pattern and practice of discrimination.
 
In this webinar, the attorneys from Roffman Horvitz will discuss the current status of disparate impact as a basis for claims of discrimination in employment, the differences between disparate treatment pattern and practice cases and disparate impact cases, and how statistical analysis serves as the core basis for claims pursued under either theory. They will discuss how the Administration’s Executive Order does little to change the utility of using statistical analysis to evaluate selection decisions (i.e., hires, promotions, terminations).
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