A recent executive order by President Trump represents a significant reversal in the protections against discrimination. This could have major implications for US workplaces.
Legal and civil rights activists have condemned the executive Order, which eliminates “disparate impact liability”. The order was published as Restoring Equality of Opportunity, and Meritocracy.
The disparate-impact liability principle allows for people to contest actions that harm protected groups in a disproportionate way, even if they appear neutral. In such cases, the affected parties do not need to prove discrimination.
The order of Trump directs federal agencies not to prioritise enforcement of laws that have discriminatory consequences. It also instructs the US Attorney General to “repeal or amend” Title VI regulations implemented under the Civil Rights Act of 1964.
Title VI prohibits any discrimination on the basis of race, color or national origin for programs or activities that receive federal financial assistance. Anyone who benefits or participates in a program that receives federal funds is protected against discrimination.
Fatima Graves of the National Women’s Law Center attacked the policy. “This executive orders instructs the Government to stop enforcing civil rights protections in the workplace, in schools, and throughout our society. It also instructs them to rewrite the regulations that have protected rights for all people over decades.
This order is part and parcel of Donald Trump’s ongoing effort to undermine our freedoms, our rights and our liberties. He is angry that we can use civil rights laws to fight bullies like him. A president cannot take away civil rights protections for the citizens of this country by a simple flick of the wrist.
Legal experts also condemned the order stating that it misconstrued laws already in place.
The directive directs all federal agencies “to take appropriate action” within 90 days after reviewing pending cases or consent decrees that have disparate impacts.
The order depicts “disparate impacts” as part of a pernicious movement that threatens the American Dream, that all citizens will be treated equally under law. This principle “guarantees equal opportunity, but not equal outcomes”.
The document said that disparate impact was against the promise to treat people as individuals and not as components of a race or group. The document stated that “Disparate impact liability requires businesses and individuals to take into account race and to engage in racial balance to avoid potentially crippling liability.” This not only violates our Constitution, but it also undermines our national value.
The statement stated: “On an operational level, disparate impact liability has prevented businesses from making employment and hiring decisions based solely on merit, skill, their own needs or the needs their customers, because the fear that such a decision-making process could lead to disparate results and disparate-impact suits.
In 1971, a North Carolina electric power plant faced a legal challenge over the requirement that employees possess a high-school diploma or pass a test of intelligence as a precondition for employment.
According to the complaint, due to the lack of civil liberties, education, and history of forced disadvantage, black applicants were disproportionately rejected. The US Supreme Court ruled that, if an employer’s practice excludes minorities, and it cannot be proven that it is related to performance on the job, then it should be prohibited.
The case became a landmark in the field of civil rights. It established the legal basis for the theory of disparate impact of discrimination.
Ayesha Whyte is the managing partner of Dixon Whyte in the DC area. She told HR Brew, an online publication, that while the order cannot change the law it could impact how certain laws are enforced. “It weakens the protections against systematic discrimination.”
The Equal Employment Opportunity Commission (US), a federal agency that oversees employment, can no longer represent workers in disparate impact cases.
Whyte stated that not everyone can afford to hire an attorney to help them fight these battles. The real problem is that the places that should be protecting and defending you are essentially tied.
City Journal, a conservative publication, hailed the executive order’s success as one of meritocracy. In a blog post, it was stated that the executive order helped restore the 1964 Civil Rights Act’s “original meaning”. The article continued: “Every mainstream organization is desperate to hire as many blacks with the least qualifications as possible. It is white men who are excluded and disfavored from positions because of their skin color.”
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