The U.S. Equal Employment Opportunity Commission (“EEOC”) has ceased investigating claims based solely on alleged disparate impact discrimination. Traditionally, disparate impact discrimination claims could be proven when a seemingly neutral employment policy or practice disproportionately affected members of a protected class—such as race, gender, or age—even if there was no evidence of an intent to discriminate.
This change, announced in an internal memo and effective as of September 30, 2025, follows President Trump’s April 2025 executive order abandoning the use of disparate impact as a legal theory in federal discrimination cases. Nearly all employees who might have asserted federal disparate impact claims will be affected, as most employment-related lawsuits must begin with the EEOC and/or equivalent state agency.
Executive Action and Agency Policy
Executive Order #14281 (“EO 14281”) directed federal agencies to eliminate the use of “disparate impact” analysis as a legal theory and stated that it is “the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible.”
In response to EO 14281, the EEOC announced that it would no longer pursue or investigate cases where the only allegation is disparate impact. Instead, the EEOC will focus exclusively on claims of intentional discrimination (referred to as “disparate treatment”). The EEOC will: (1) discharge any investigations where the principal legal theory is disparate impact; (2) issue notices to charging parties informing them of their option to pursue the matter in court independently; and (3) comply with President Trump’s executive order, which characterizes disparate impact a “pernicious movement” that promotes “racial balancing.”
For decades, the EEOC used the disparate impact theory to challenge school district policies related to hiring, promotion, and layoffs, especially when statistical evidence showed significant disparities and the district could not show that the policy was job-related and consistent with business necessity. Now, employees will have one less legal avenue to challenge policies and practices they believe to be discriminatory.
Impact on Schools
While disparate impact has been a mainstay of civil rights enforcement, its de-emphasis as a legal theory under federal law reduces, but does not eliminate, the risk of liability for districts and schools whose policies or practices may have discriminatory effects. For example, employees may still file Charges of Discrimination that rely on disparate impact theory with both the EEOC and state agencies. However, the EEOC itself will no longer file lawsuits on behalf of such individuals and will not investigate such claims. These individuals will be issued Right to Sue letters and can proceed under their own name.
Without federal disparate impact investigations, employees—especially women and people of color—will have fewer options to challenge policies that may disproportionately affect them. While they can still claim that policies are discriminatory under a disparate treatment theory, such cases can be more challenging to prove because disparate treatment requires a plaintiff to identify a similarly situated comparator who received different, more favorable treatment, or to otherwise prove intent.
However, some states may continue to allow discrimination lawsuits brought under state anti-discrimination laws to be proven under a disparate impact theory. State agencies may still process Charges of Discrimination based on disparate impact, even if the EEOC will no longer do so. State court litigation is often more unpredictable and plaintiff-friendly, potentially increasing risk for defendant school districts.
Contact us
If you have questions regarding the implications of the shift away from disparate impact theory, contact John W. Borkowski, Aleks O. Rushing, Mackenzie Conway, Samantha Bowie, or your Husch Blackwell Education attorney.