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A new Trump executive order just dropped and it’s got all the standard Trumpian features: There’s the pompous title. There’s the predictable overreach. And then there’s the equally predictable, but still absolutely wild, racism.
Wednesday’s “Restoring Equality of Opportunity and Meritocracy” executive order purports to eliminate disparate-impact liability in both Title VI and Title VII civil rights cases. Title VI prohibits discrimination based on race, color, or national origin in any program or activity that receives federal funding. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. Getting rid of disparate impact liability would make it much more difficult to prove discrimination, which is, of course, the whole point.
Broadly speaking, two types of discrimination cases arise under Title VI and Title VII.
One is about intent, the other about effect. The former requires a plaintiff to show that the defendant meant to discriminate by pointing to actions and statements.
But plenty of discrimination isn’t that obvious or intentional. That’s where disparate impact comes in. A policy can be neutral on its face and have been enacted with no discriminatory intent, but still disproportionately affect a protected class. Disparate impact liability is necessary because most racists are not Snidely Whiplash mustache-twirling types running around making blatant statements about their racist intentions.
Related | Make Jim Crow Great Again: Trump’s DOJ freezes federal civil rights work
This sounds lawyerly and complicated in theory, but it’s much easier to spot in practice. Here’s an example: In Griggs v. Duke Power Co., the defendant, a power plant in North Carolina, required all workers to have a high school diploma or pass certain intelligence tests. At the time Griggs was decided in 1971, the long shadow of Jim Crow and segregated schools meant that Black applicants were disproportionately rejected.
Those requirements didn’t measure the ability to perform a particular job—they were just arbitrary. The Black employees prevailed because they could show that, regardless of intent, the effect of the requirements was discriminatory.
Duke Power had a lengthy history of open discrimination. In fact, the company added the requirements the same day Title VII became effective in 1965, a painfully obvious attempt to keep discriminating despite the law. The company was savvy enough to make the new requirements apply to everyone, which meant Black employees and applicants couldn’t prove that Duke Power intended to discriminate against them. Without disparate impact, the plaintiffs in Griggs would have been out of luck.
And that’s exactly what Trump wants. He’s racist, and he wants companies, schools, the government—you name it—to be racist without consequences. Without disparate impact, discrimination is essentially fine as long as a defendant doesn’t run around yelling, “I am doing a racist, discriminatory thing right now!”
According to Trump’s executive order, disparate impact liability is hobbling companies because they can’t use bona fide qualifications when hiring, and therefore, “employers cannot act in the best interests of the job applicant, the employer, and the American public.”
Come on.
Like all other Trump executive orders, this isn’t a law, even though Trump seems to think he’s signing legislation when he scribbles his name on these things.
Also like all other Trump executive orders, this thing is a mess. One part of it is Trump asserting he can just wipe out decades of civil rights regulations by saying so. Another part is his usual whining about how American greatness is undermined if there’s even a scintilla of wokeness anywhere. Then there’s the demand that all agencies find and eliminate any rule that mentions disparate impact. The worst part, though, is at the end, where it lays out how the government is simply going to stop most civil rights enforcement.
The groundwork for that has already been laid. Harmeet Dhillon, the new head of the Department of Justice’s Civil Rights Division, forced out most of the career attorneys in what was described as a “bloodbath.” The division will no longer focus on enforcing civil rights laws, but instead is going to prioritize implementing Trump’s culture war executive orders about trans athletes and “radical indoctrination” in schools.
Wednesday’s order requires the Equal Employment Opportunity Commission to assess all open investigations and lawsuits that relied on disparate-impact liability. That sounds benign, but what it’s really saying is that the EEOC will no longer bring disparate impact cases and will likely kill existing cases as well.
And it’s not just the EEOC and employment cases. The order also requires Housing and Urban Development Department, the Consumer Financial Protection Bureau, and the Federal Trade Commission to evaluate any pending proceedings that rely on disparate impact theories. All agencies are also supposed to evaluate existing consent judgments and injunctions based on disparate impact liability.
It’s tempting to raise the usual—and completely correct—objection, which is that he can’t repeal these rules via an executive order. These rules were promulgated via formal agency rulemaking. That’s a lengthy process where the agency proposes a rule, allows the public to comment, reviews the comments, and issues a final rule. The president can direct an agency to review and revise or repeal those types of rules, but he can’t wipe them out with the stroke of a pen.
There’s a “good cause” exception to this, which is that notice-and-comment rulemaking can be dispensed with if doing so would be “impracticable, unnecessary, or contrary to the public interest.” Trump latched onto this a couple of weeks ago, issuing a less-noticed executive order that purports to invoke the good cause exception for pretty much everything. If an agency decides a rule is unlawful—whatever on earth that means—it can just eliminate it.
You can thank the Supreme Court for this, because that’s where Trump got the idea that no one has to listen to agencies or let them make rules.
Last year, in Loper Bright v. Raimondo, the Supreme Court overturned Chevron deference, which required courts to defer to an agency’s reasonable interpretation of an ambiguous statute. Agency experts are in the best position to understand the statutes the agency administers. Conservatives have long hated this because god forbid you have experts make regulations.
In Loper Bright, the conservative majority wrenched statutory interpretation away from agencies and gave it to the courts. Yes, now, rather than having Environmental Protection Agency scientists determine how to implement reductions in ozone pollution, the Supreme Court will decide it instead.
In case you’re wondering how that will go, in Ohio v. EPA, decided the day before Loper Bright, Justice Neil Gorsuch’s majority opinion boasted of “put[ting] a tombstone” on Chevron and how great it will be now that judges interpret complicated agency statutes. Then Gorsuch utterly beclowned himself by repeatedly referring to “nitrous oxide”—the stuff you get at the dentist—when the case was about nitrogen oxides that the EPA was trying to regulate. Good job, Neil.
The courts are part of the problem here—ell, mostly the Supreme Court. This administration keeps doing things it is not allowed to do, largely via these unhinged executive orders. The other branches of government are supposed to act as a check against an aggressive executive. However, the GOP majority in Congress seems content to let Trump do whatever he wants, and while the lower federal courts have fairly consistently ruled against Trump, the Supreme Court is another story.
Ultimately, this will be in the hands of the court that eliminated affirmative action, gutted the Voting Rights Act, and invented immunity for Trump. There may very well be five votes in favor of letting Trump wipe away a chunk of the Civil Rights Act, which is a very grim place to be.
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