New Executive Order Changes Course On Certain Employment Discrimination Claims

The president's April 23 executive order marks a significant shift in the executive branch's approach to employment discrimination law. It specifically targets the concept of disparate impact liability. While the order doesn't repeal current law or court precedent, it could change how DOJ or other agency lawyers approach these employee claims and the evidence needed to prove them.

Understanding Disparate Impact Liability

Traditional discrimination claims often involve disparate treatment. These require proof that an employee faced intentional discrimination due to protected characteristics such as race, national origin and gender. In contrast, a disparate impact claim requires an employee to prove that a facially neutral policy or practice disproportionately and adversely affects a protected class.