DEI Part One: The Dismantling of Disparate Impact Protections

America has never been colorblind. Despite claims that race no longer matters and that the Civil Rights Movement achieved its goals, the data tells a different story. Today, systemic racism is maintained not by overt acts of discrimination but through policies and practices that appear neutral but produce unequal outcomes. This is the domain of disparate impact.

Disparate impact is the principle that policies can be discriminatory even if they are not explicitly racist if their outcomes disproportionately harm protected groups. It is one of the most powerful tools in civil rights law—and one of the most misunderstood. And today, under the Trump administration’s new Executive Order 14281, it is under attack again. This is not the first time.

The principle of disparate impact was established in part through Title VI of the Civil Rights Act of 1964, which prohibits discrimination based on race, color, or national origin in programs that receive federal funding. [1] The Supreme Court later recognized disparate impact in employment through Griggs v. Duke Power Co. (1971), holding that facially neutral hiring practices that disproportionately excluded Black workers violated Title VII of the Civil Rights Act[2].

However, in Alexander v. Sandoval (2001), the Court ruled that private citizens could not sue based on disparate impact under Title VI, only under Title VII for employment cases[3]. This limited the scope of protections unless explicitly stated by Congress or enforced by federal agencies.

In 2020, President Donald Trump signed Executive Order 13950, which prohibited federal agencies and contractors from conducting diversity and inclusion training that discussed systemic racism or white privilege. [4] President Joe Biden repealed this order under Executive Order 14035, which restored diversity, equity, and inclusion (DEI) initiatives across federal agencies[5].

However, in March 2025, Trump returned with Executive Order 14281—a sweeping rollback that prohibits the use of disparate impact analysis in federal agency decision-making, effectively gutting the enforcement of DEI by the federal government. [6]

Why is this principle so crucial? Because racism has evolved. It now hides behind spreadsheets, zoning ordinances, lending criteria, and school district boundaries. A policy doesn’t need to say “no Blacks allowed” to be racist. If it consistently and predictably harms Black communities, it is racist in effect, if not intent.

Examples include:

Disparate impact provides regulators and courts with a means to evaluate these outcomes and demand accountability. Without it, plaintiffs must prove intent—a nearly impossible standard.

This is not about fairness; it is about power. Rolling back disparate impact protections serves a political agenda: to delegitimize race-conscious policies, paint equity as extremism, and restore “meritocracy” as the gold standard—a meritocracy built on a rigged foundation.

The anti-disparate impact movement relies on three myths:

These myths ignore 400 years of policy-driven inequality. They allow those in power to preserve the status quo while claiming to be race-neutral.

With the stroke of a pen, Executive Order 14281 has removed the ability of federal agencies to use disparate impact as a framework for enforcement. This means agencies like HUD, the Department of Education, and the Department of Justice are now legally barred from considering whether their policies disproportionately harm communities of color[10].

This is not hypothetical. It will affect:

Disparate impact is not about punishing anyone. It is about outcomes. If the outcomes are consistently unjust, we must fix the system. Executive Order 14281 is an intentional step backward—a deliberate effort to erase the tools we use to expose racism that hides in plain sight.

We must advocate for congressional action to enshrine disparate impact protections into law. Only legislation can provide the permanence we need. Executive orders are too fragile. Too easy to reverse.

Our silence will be interpreted as consent. Let us speak, write, organize, and legislate. The fight for equality was never finished. It has simply changed form.

Disparate impact is not a fringe idea. It is a cornerstone of civil rights enforcement in the United States.  When that cornerstone is removed, the entire house of equality begins to crack.

And we are seeing it crack.

Eric Lawrence Frazier, MBA
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References
[1] Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964). https://www.govinfo.gov/content/pkg/STATUTE-78/pdf/STATUTE-78-Pg241.pdf
[2] Equal Employment Opportunity Commission. (n.d.). Disparate impact. https://www.eeoc.gov/disparate-impact
[3] Alexander v. Sandoval, 532 U.S. 275 (2001). https://supreme.justia.com/cases/federal/us/532/275/
[4] Executive Order 13950, 85 Fed. Reg. 60683 (Sept. 22, 2020). https://www.govinfo.gov/content/pkg/FR-2020-09-28/pdf/2020-21534.pdf
[5] Executive Order 14035, 86 Fed. Reg. 34593 (June 25, 2021). https://www.federalregister.gov/documents/2021/06/30/2021-14118/diversity-equity-inclusion-and-accessibility-in-the-federal-workforce
[6] Executive Order 14281, 90 Fed. Reg. 26071 (Mar. 14, 2025). https://www.federalregister.gov/presidential-documents/executive-orders
[7] U.S. Department of Housing and Urban Development. (2023). Disparate Impact Rule. https://www.hud.gov/program_offices/fair_housing_equal_opp/disparate_impact
[8] NAACP Legal Defense Fund. (2020). What is Disparate Impact? https://www.naacpldf.org/press-release/what-is-disparate-impact/
[9] National Fair Housing Alliance. (2022). Fair Housing Trends Report. https://nationalfairhousing.org/reports-research/fair-housing-trends-report-2022/
[10] U.S. Commission on Civil Rights. (2021). Federal Measurable Equity Standards. https://www.usccr.gov/files/2021-11/equity-final-briefing-report.pdf