Restoring Equality of Opportunity and Meritocracy
This Executive Order, titled "Restoring Equality of Opportunity and Meritocracy" (EO 14281), directs federal agencies to move away from using "disparate-impact" legal theories in civil-rights enforcement. Disparate-impact liability is the idea that a policy or practice can be unlawful if it has a disproportionately adverse effect on a protected group (race, sex, age, etc.), even if there was no intent to discriminate. The Order describes disparate-impact rules as inconsistent with a "meritocratic" and "colorblind" vision of equality and directs the Department of Justice and other agencies to revoke or amend regulations, deprioritize enforcement, and review ongoing cases, consent decrees, and agency rules that rely on disparate-impact theories. Potential impact: the Order signals a major shift in enforcement priorities across multiple civil-rights domains (employment, housing, credit, and consumer protection). In practice it may limit agency enforcement actions that rely on disparate-impact claims, prompt rulemaking or regulatory changes (via the Attorney General and agencies), and lead to review or alteration of pending investigations, cases, and consent decrees. Because an Executive Order cannot change statutes or judicial precedents, its immediate effect is to direct how the Executive Branch enforces existing law; it may also spur litigation and legislative responses.
Key Points
- 1Policy goal: Declares a federal policy to eliminate disparate-impact liability "to the maximum degree possible," arguing such liability forces racial or sex-based balancing and undermines merit-based decisions.
- 2Revocation of prior approvals: Withdraws Presidential approvals of specific Department of Justice Title VI regulatory approvals from 1966 and 1973 as they relate to certain portions of 28 C.F.R. 42.104—targeting regulatory language that has been used to support disparate-impact enforcement under Title VI (federally funded programs).
- 3Enforcement deprioritization: Directs all executive agencies to deprioritize enforcement of statutes and regulations insofar as they include disparate-impact liability. It specifically names Title VII (employment discrimination), parts of 28 C.F.R. 42.104 (Title VI regulations), and related regulatory provisions, and calls out fair-housing, credit, and consumer-protection contexts.
- 4Agency action and timelines: Directs the Attorney General to initiate actions to repeal or amend Title VI implementing regulations and requires coordinated agency reports within 30 days listing regulations/guidance that impose disparate-impact liability and plans to address them. It also requires the AG and EEOC to assess pending investigations and suits within 45 days and requires agencies to review consent judgments/injunctions that rely on disparate-impact theories within 90 days.
- 5Future guidance and preemption review: Instructs the AG to determine whether federal authorities preempt state laws that impose disparate-impact liability and to take appropriate measures. The AG and EEOC are also directed to issue guidance or technical assistance to employers on promoting equal access to employment (including regarding whether a college degree is required).