U.S. Department of Justice Ends “Disparate Impact” Liability

U.S. Department of Justice Ends “Disparate Impact” Liability

This week, the U.S. Department of Justice issued a final rule eliminating its regulations concerning so-called “disparate impact” liability for discrimination under Title VI of the Civil Rights Act of 1964.

The long-disputed issue was whether Title VI claims require intentional discrimination, or whether unintentional discrimination resulting in different outcomes for different people, allegedly based on discrimination, was actionable in court.

In short, under the disparate impact approach, individuals were encouraged to file lawsuits even where no evidence of intentional discrimination against them existed.

A short primer is in order.

Congress enacted Title VI as part of the landmark Civil Rights Act of 1964 to prohibit discrimination based on race, color, or national origin in programs and activities that receive federal funds.

But in 1973, the federal government added a new regulatory rule, disparate impact, that was not part of the law as originally envisioned by Congress.

While long disputed, disparate impact has still remained legally viable.

At least until this week.

The DOJ’s new rule eliminating disparate impact is based primarily on three justifications: U.S. Supreme Court decisions, an executive order issued by President Trump, and policy concerns.

First, the Supreme Court has found that Title VI only prohibits intentional discrimination, not neutral policies that might result in disparate outcomes. Even as far back as 1978, the Court wrote that Congress intended Title VI to prohibit “only those racial classifications that would violate the Equal Protection Clause” if committed by a government actor. Other cases have echoed this conclusion.

Given the Court’s recent affirmation that “statutes… have a single, best meaning” that is “fixed at the time of enactment,” the DOJ argues that the single, best meaning of Title VI is that it prohibits only intentional discrimination.

Second, on April 23, 2025, President Trump issued Executive Order 14281, which restated the “bedrock principle of the United States . . . that all citizens are treated equally under the law.” The Order further explained that this “principle guarantees equality of opportunity, not equal outcomes.”

Specifically regarding disparate impact liability, the President wrote that disparate impact endangers the foundational principle of equality before the law. Because of this conflict with constitutional principles, “[i]t is the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible…”

Third, the DOJ bases its new rule, which rolls back disparate impact liability, on serious policy concerns about how the law affects and incentivizes those subject to its restrictions.

Instead of reducing or eliminating discrimination, the original purpose of Title VI, disparate impact liability requires individuals and businesses receiving federal money to consider race and engage in racial balancing to avoid getting sued.

Instead of institutions or businesses receiving federal funding, making hiring and other decisions based on merit and skill, because this process could lead to disparate outcomes for a given group, they are forced to engage in the very kind of discrimination Title VI was meant to fix.

Attorney General Pam Bondi has definitively now settled the issue with a lot of help from Harmeet Dhillon, head of the Civil Rights Division.

Per her press release concerning the new rule: “For decades, the Justice Department has used disparate-impact liability to undermine the constitutional principle that all Americans must be treated equally under the law. No longer.”

With the DOJ’s new rule, the Department rolls back over fifty years of disputed legal territory concerning disparate impact. For some activists, this move will be decried as taking away an important tool to fight discrimination.

But for those of us who think individuals should be judged by their intentions and actions, rather than what racial group they belong to, this change is a cause of celebration.

Reminder: we are a small organization going up against powerful and wealthy government and private institutions devoted to DEI discrimination. Donations are greatly needed and appreciated.

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Timothy R. Snowball is a Senior Attorney at the Equal Protection Project.

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