President Trump has struck a devastating blow at the legal theory that drives most of the race-centric litigation in the country. In his executive order 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,” Trump orders the full weight of the federal government directed toward eradicating and what is essentially the racist contention that Black men and women are at a disadvantage when a race-neutral standard is used.

"Disparate impact" is a great example of how legislative authority devolved into an unelected bureaucracy making up rules to please interest groups with no reasonable basis in law.

The Civil Rights Act banned discrimination “because of” race, sex, and other prohibited characteristics. That language was written, intended, and understood at the time to outlaw intentional discrimination. Practices that had a dramatically unequal outcome on different groups might be supporting evidence of intentional discrimination, but nothing in the statute made it a substitute for proving discrimination. Other statutes written in that era, such as the Age Discrimination in Employment Act of 1967 (ADEA) and the Fair Housing Act of 1968 (FHA), contained similar language.

As Justice Clarence Thomas has observed, “The author of disparate-impact liability under Title VII was not Congress, but the Equal Employment Opportunity Commission (EEOC).” The EEOC’s leaders felt that Congress had passed a “compromise” statute and that, through “creative interpretation,” it could be expanded to reach any practice that produced unequal outcomes. Deference to the EEOC’s position led the Supreme Court to adopt the disparate impact theory under Title VII in 1971, and later to engraft it upon the ADEA and the FHA, the latter in a 5–4 decision in 2015 from which Thomas, Justice Samuel Alito, and Chief Justice John Roberts all dissented. Trump’s executive order quotes the chief justice’s own words in another case: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

It is really hard to explain how evil the "disparate impact" theory is. This is from Heather MacDonald writing in City Journal: "Disparate-impact theory holds that if a neutral, colorblind standard of achievement or behavior has a disproportionately negative effect on underrepresented minorities (overwhelmingly, on blacks), it violates civil rights laws. It has been used to invalidate literacy and numeracy standards for police officers and firemen, cognitive skills and basic knowledge tests for teachers, the use of SATs in college admissions, the use of grades for medical licensing exams, credit-based mortgage lending, the ability to discipline insubordinate students, and criminal background checks for employees and renters. It has been used to eliminate prosecution for a large range of crimes, including shoplifting, turnstile jumping, and resisting arrest; to end police tactics such as proactive stops (otherwise known as stop, question, and frisk); and to purge safety technologies like ShotSpotter and speeding cameras from police departments."

One of the first actions of the Trump administration was withdrawing from some of the most egregious cases where police and fire department tests were deemed racist because they required basic math proficiency; see Manliness Is Great Again: Trump Just Ended Biden's Hostile DEI Takeover of First Responders – RedState and Department of Justice Reverses Course in Biden Initiated Lawsuits on Police and Fire Department Hiring – RedState.

One of the more insane cases is still under litigation. The Equal Employment Opportunity Commission is pursuing the gas-convenience store chain Sheetz for racial discrimination because they don't hire applicants with criminal records. "According to the lawsuit, Sheetz has maintained a longstanding practice of screening all job applicants for records of criminal conviction and then denying them employment based on those records," reads the EEOC press release, "The EEOC charges that Sheetz’s hiring practices disproportionately screened out Black, Native American/Alaska Native and multiracial applicants." 

The second is more pernicious. What the EEOC wanted was for Sheetz to replace an objective criteria - if conviction, then no employment - with subjective criteria. Requiring individual review opens the floodgates to claims that racial motivations were used. pic.twitter.com/vK4yku3TLe

— alexandriabrown (@alexthechick) April 24, 2025

Under Trump, the EEOC is being reorganized (see Equal Employment Opportunity Commission Dead in the Water After Trump Fires Two Commissioners – RedState) and the Civil Rights Division of the Department of Justice has been gutted and the rebuilding started (Trump’s 'Bloodbath' in the DOJ's Civil Rights Division Is Exactly What Voters Demanded – RedState). I would expect to see them focus on eradicating this racist and divisive legal theory, and doing it in such a way that it can't be resurrected in the future.

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