By Lauren M. Drabic*
As a latest example of its shift in enforcement priorities, according to an internal memo obtained by Bloomberg Law, the Equal Employment Opportunity Commission (“EEOC”) has directed its investigators to close all pending charges alleging disparate impact discrimination by September 30, 2025. This directive comes in response to President Trump’s April 23, 2025, Executive Order entitled “Restoring Equality of Opportunity and Meritocracy,” which directed all federal agencies to “deprioritize enforcement of all statutes and regulations to the extent they include disparate-impact liability.”
Unlike claims of disparate treatment, which involve allegations that an employer intentionally discriminated against an employee because of his or her race, sex, age, national origin, disability, or other protected characteristic, intent is irrelevant disparate impact claims. Instead, disparate impact claims challenge employment practices that appear neutral on their face, but that nonetheless adversely impact - i.e., disproportionately harm - individuals in a protected class. Under this theory, employers may be liable for discrimination if a facially neutral practice causes a significant, adverse effect on a protected group, unless the policy or practice is job-related and essential to business operations. Historically, employees have successfully challenged practices including pre-employment testing, height and weight requirements, physical strength tests, criminal background checks, and educational requirements when those practices did not relate to the requirements of the job and had no business necessity.
The current administration has targeted disparate impact liability as a hindrance on the ability of employers to make hiring and other employment decisions based on merit. As a result, of the EEOC’s directive, the agency will close out all charges of disparate impact discrimination by September 30, 2025. However, this will not fully extinguish these claims. Instead, individuals who have filed charges alleging only disparate impact discrimination will receive a Notice of Right to Sue letter, which will allow them to pursue their claims in court within a specified timeframe. This could lead to a short-term influx of disparate impact claims in federal court. For charges alleging both disparate impact and disparate treatment, the EEOC will proceed with its investigation but focus exclusively on the disparate treatment claims.
The EEOC’s memo marks the latest example of the current administration’s shift in priorities and the ever-changing landscape of Title VII (Z&R has highlighted other recent examples here and here). However, it does not change the state of the law. Disparate impact discrimination remains unlawful under both Title VII and Ohio’s anti-discrimination statutes. Z&R will continue to monitor developments and stands ready to assist employers with strategic guidance on all matters related to Title VII.
*Lauren M. Drabic is an OSBA-certified specialist in labor and employment law and has extensive experience representing employers in discrimination, harassment, and other workplace enforcement matters. If you have questions about the changes occurring under Title VII, contact Lauren M. Drabic (lmd@zrlaw.com) by email or at 216.696.4441.
