As explained in an internal agency memo, the Equal Employment Opportunity Commission (EEOC) has taken action to close out virtually all pending charges that were based exclusively on disparate impact discrimination. The disparate impact theory, which has long been subject to debate, is a tool plaintiffs use to prove Title VII discrimination even when there appears to be no discriminatory intent. The theory recognizes that claims may arise where a facially neutral workplace policy or practice has a greater negative effect on those in a protected class as compared with those not in a protected class.
The EEOC’s move aligns with the Trump administration’s April 2025 executive order, which instructed federal agencies like the EEOC to deprioritize claims premised on the disparate impact theory. In that executive order, the EEOC was directed to “assess all pending investigations, civil suits, or positions taken in ongoing matters under every Federal civil rights law within their respective jurisdictions, including Title VII, that rely on a theory of disparate-impact liability, and shall take appropriate action with respect to such matters consistent with the policy of this order.” While the EEOC closed out the vast majority of charges relying exclusively on the disparate impact theory, charges that include other claims or basis for discrimination are not subject to the group closure. Those matters may still be subject to agency investigation and action, to the extent the agency can continue without investigating the disparate impact claims.
While the EEOC may not be investigating disparate impact claims, disparate impact theory is still a viable method by which plaintiffs may prove discrimination in violation of Title VII. The EEOC’s internal memo and the executive order do not change existing case law recognizing the viability of the disparate impact theory. Litigants may still file lawsuits alleging the theory, and while the responding employer may cite the EEOC’s moves as instructive, courts are bound to apply the existing precedent recognizing such claims, to the extent the litigant can prove discrimination in alignment with such precedent.
