President Donald Trump swung his executive wrecking ball on Wednesday at a key component of the Civil Rights Act of 1964, in a move that threatens decades of anti-discrimination efforts. Under a new executive order with the Orwellian title “Restoring Equality of Opportunity and Meritocracy,” his administration will deprioritize enforcement of statutes and regulations that cover “disparate impact liability.” In attacking this critical legal tool in the name of supposed “meritocracy,” Trump is greenlighting rampant discrimination — as long as you’re subtle about it.
Trump is greenlighting rampant discrimination — as long as you’re subtle about it
Imagine a business has a “Help Wanted” sign in its window, but below that is another that reads “No Black applicants allowed.” This would be a clear violation of anti-discrimination laws. But suppose instead the business specifies that applicants can only live in a certain part of town — one that happens to be both extremely affluent and very white. Under Title VII of the 1964 Civil Rights Act, that business could be sued for a hiring practice that seems neutral on its face but still produces a discriminatory effect.Importantly, such discriminatory effects don’t have to be malicious, or even intentional, under the disparate impact standard. The effects of long-term systemic racism, sexism and other prejudices are, after all, often hard to prove via a “smoking gun” of blatant discrimination. In 1971’s Griggs v. Duke Power Co., the Supreme Court upheld Title VII’s provisions to ensure that equal employment opportunity exists across the board. Chief Justice Warren Burger wrote for the majority that “Congress has now provided that tests or criteria for employment or promotion may not provide equality of opportunity merely in the sense of the fabled offer of milk to the stork and the fox.”
Like most of Trump’s crusade against “diversity, equity and inclusion” standards, this executive order turns the idea of discrimination on its head to argue that disparate impact “violates the Constitution’s guarantee of equal treatment for all by requiring race-oriented policies and practices to rebalance outcomes along racial lines.” It builds off long-running conservative animus toward the legal tool of Title VII, premised on claims that employers have been forced to focus on race and sex at the expense of other qualifications in hiring and promotions. It’s basically the same argument we’ve heard for years, one where companies are accused of discriminating against white men in favor of hiring, for example, a supposedly less qualified Black woman instead.Trump can’t completely strike the provision from the books because Congress codified the Griggs decision further into law in a 1991 update to the Civil Rights Act. But he’s still told his administration to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.” This effort also includes, as The Washington Post explained, having Attorney General Pam Bondi revoke Justice Department regulations “that bar any program receiving federal financial support from discrimination based on ‘race, color, or national origin.’”
This latest executive order is part and parcel with Trump’s overarching attack on his perceived enemies, be they legal, political or ideological in nature.
This latest executive order is part and parcel with Trump’s overarching attack on his perceived enemies, be they legal, political or ideological in nature. The New York Times reported that last month the Equal Employment Opportunity Commission “began questioning the hiring practices of 20 of the country’s biggest law firms” — many of which have been targeted for opposing Trump — “claiming that their efforts to recruit Black and Hispanic lawyers and create a more diverse work force may have potentially discriminated against white candidates.” The administration has also slashed funding for enforcement of the Fair Housing Act, a 1968 law that Trump himself ran afoul of as a New York real estate manager back in the 1970s.The attack on disparate impact is especially pernicious, given how this change will bolster the less obvious forms of racist or sexist bias that the law sought to uproot. Last year, the Brookings Institution’s Chiraag Bains examined how updated disparate impact laws are crucial to preventing “algorithmic discrimination” as the use of artificial intelligence spreads. While most programmers aren’t purposefully coding programs to harm minority users, those biases can still easily seep into their work. Without disparate impact analyses, proving the harm from seemingly innocuous lines of code will be more difficult.
As for the supposed vindication of meritocracy that the executive order promises, it’s hard to think of a less appropriate vehicle for that principle than Trump. He is himself a mogul only by merit of inheritance, who has fallen upward over the decades despite his many failures. Further, as MSNBC senior contributor Michele Norris put it, Trump’s attacks on DEI are “particularly hypocritical from a president who has appointed Cabinet members whose experience falls far below the historically established standard for their positions.”
Trump’s inner circle is hardly a model of the meritocracy at work. The latest scandals swirling around Defense Secretary Pete Hegseth don’t exactly paint him as an upgrade from former Pentagon chief Lloyd Austin. The slapdash decision-making by the phalanx of young acolytes that surround billionaire Elon Musk at the Department of Government Efficiency doesn’t seem like the work of the most qualified or experienced people.
America’s civil rights laws were meant not just to grant minorities equal protection under the law but to begin to undo centuries of legal harms against them. The conservative movement today would have us believe that we’re at the point where things are so much better that the oppressors are now being oppressed. In appropriating the language of civil rights laws, Trump has twisted and subverted them to reinforce the very disadvantages that they were meant to topple, all in defense of the still reigning majority.