In a memo, the U.S. civil rights agency announced plans to stop investigating complaints regarding company policies that don’t involve accusations of discrimination but may harm targeted groups, according to the Associated Press.
The note, dated Sept. 15, was sent to directors of all levels of the U.S. Equal Employment Opportunity Commission (EEOC), stating that the agency, which is responsible for enforcing worker rights, will dismiss any complaints based on the legal concept of “disparate impact liability.” The concept argues that even if a policy appears fair, it can still be perceived as discriminatory if it creates unnecessary barriers that hinder specific groups of people from thriving.
Industry leaders label it as an effective tool used to weed out workplace
discrimination, particularly at a time when algorithmic bias has grown more pertinent, with employers relying on A.I. during the hiring process. But the concept isn’t as popular as one may think.Pushing disparate impact claims is less common than accusations of intentional discrimination, which is defined as disparate treatment. However, attorney Bradford Kelley, who also served as chief counsel to former Republican EEOC Commissioner Keith Sonderling, says, “The risk is still there,” with discrimination more likely to occur in new A.I. systems.
He pointed out that companies and federal agencies should be vigilant in monitoring their algorithms, as they may lead to disparate impact complaints. Civil rights and plaintiff-side employment attorney Christine Webber strongly agrees. “As AI is becoming more and more popular, it’s particularly important that we have the disparate impact tools available to be able to police it and make sure it’s not being used to resegregate the workforce,” Webber said.
Disparate-impact liability was first recognized by the U.S. Supreme Court under Title VII of the Civil Rights Act of 1964 in the case titled Griggs v. Duke Power Co. According to the law firm Mayer Brown, the high court ruled that the listed employer’s practice of requiring potential employees to pass an “intelligence” test held no connection to the applicant’s ability to perform the job duties.
Title VII was violated because it disproportionately disqualified n
on-white applicants. The case resulted in Congress amending Title VII in the Civil Rights Act of 1991 to add Section 703(k), recognizing that discrimination could be based on “an unlawful employment practice based on disparate impact.” Following suit, disparate-impact liability has been embedded in several federal anti-discrimination laws, including the Age Discrimination in Employment Act (ADEA), the Fair Housing Act (FHA), and the Americans with Disabilities Act (ADA).The move is being marked as a bold shift in EEOC enforcement, but not surprisingly, as it aligns with an April 2025 executive order signed by President Donald Trump, cited in the memo, demanding federal agencies make less use of disparate impact in civil rights enforcement, as he felt it encourages assumptions that any form of racial workplace imbalance is a result of discrimination. Workers with submitted complaints on such grounds are scheduled to receive a notice encouraging them to pursue the case in court on their own will.
Former EEOC General Counsel Karla Gilbride, who was fired from the agency in January 2025, said she was “disturbed” by the decision. Another former commissioner, Chai Feldblum, highlighted how this will affect employees since disparate impact ties into company-wide or industry-wide policies. “You’re talking about thousands of people who could be affected by this,” Feldblum added.
RELATED CONTENT: ELEVATING YOUR EXCELLENCE: John Hope Bryant Is A Champion Of Financial Literacy