Project 2025 Tracker / What’s done, what’s next

18. Department of Labor and Related Agencies · Major · Needs Congress

Eliminate disparate impact as a theory of discrimination under Title VII

Partially done

583 18. Department of Labor and Related Agencies

“Eliminate disparate impact as a valid theory of discrimination for race and other bases under Title VII and other laws. Disparities do not (and should not legally) imply discrimination per se.”

What has happened

  1. Partially done

    The sweep through the "other laws" continued: Commerce (2026-04-16) and Interior (2026-05-22) removed disparate impact from their Title VI regulations, the CFPB removed the effects test from Regulation B under the Equal Credit Opportunity Act (2026-04-22), and HHS did the same for its Title VI regulations on this date. HUD's parallel Fair Housing Act rule was still only a proposal on 2026-08-10. Title VII itself is untouched: 42 U.S.C. 2000e-2(k) remains law and no bill to repeal it was found in the 119th Congress.

  2. Partially done

    This is the first executive act aimed at Title VII itself, the law the Quote names first. The Office of Legal Counsel issued an opinion to the EEOC that "its guidelines about disparate-impact liability under Title VII of the Civil Rights Act are unconstitutional", which the Justice Department says "helps to implement Executive Order 14281". By the release's account, the opinion holds that employers may use job-related practices such as aptitude tests, knowledge tests and criminal-background checks if the practice is "reasonable, useful, or helps serve a valid business purpose". A plaintiff must show that the specific practice caused the disparity and must identify an equally effective alternative. That narrows the theory under Title VII as the executive reads it. It does not eliminate it: 42 U.S.C. 2000e-2(k) is still law, and courts are not bound by an OLC opinion. The opinion itself (second citation) was read on 2026-10-01. It names the Uniform Guidelines, 29 CFR part 1607, as the guidelines it reaches.

  3. Partially done

    DOJ's final rule struck the disparate-impact provisions from its own Title VI regulations (28 CFR 42.104), the regulations the President had already withdrawn approval from in section 3 of Executive Order 14281. Disparate impact is gone as a theory under Title VI as DOJ administers it — one of the Quote's "other laws".

  4. Attempted

    Executive Order 14281 declared it "the policy of the United States to eliminate the use of disparate-impact liability in all contexts to the maximum degree possible," ordered all agencies to deprioritize enforcement of statutes that carry disparate-impact liability — naming 42 U.S.C. 2000e-2, the Title VII provision — and told the Attorney General and the EEOC Chair to reassess every pending Title VII matter resting on the theory. Nothing in the order changes the statute.

Research log

What was searched, and what didn’t count as evidence

Research notes

  • The ask names Title VII first, and Title VII is where the least has happened: the disparate-impact provision Congress wrote into 42 U.S.C. 2000e-2(k) in 1991 is still on the books, and no bill repealing it was found in bills.ndjson (18,433 bills, searched on title for “disparate impact” — zero hits). What has changed is regulatory, under “other laws”: Title VI (DOJ, HHS, Commerce, Interior), the Equal Credit Opportunity Act (Regulation B), and — proposed only — the Fair Housing Act.
  • HUD’s Fair Housing Act disparate-impact rule was proposed 2026-01-14 and supplemented 2026-08-10; not final, so not counted: https://www.federalregister.gov/documents/2026/08/10/2026-16228/huds-implementation-of-the-fair-housing-acts-disparate-impact-standard-amendments-to-huds-title-vi
  • Overlaps #108 (Chapter 3, End or narrow the disparate impact doctrine in federal hiring), which is done on the narrower federal-hiring question via the OPM removal of UGESP references. This item is the wider statutory ask and does not inherit that Status.
  • One of the four instruments above is under challenge, and this is where a reversal would land. National Fair Housing Alliance v. Consumer Financial Protection Bureau, No. 1:26-cv-01820 (D.D.C., filed 2026-05-27, complaint amended 2026-08-11), challenges the CFPB’s Regulation B rule of 2026-04-22 — the one cited above for removing the effects test under the Equal Credit Opportunity Act. The court’s scheduling order (read from the docket 2026-09-09) sets plaintiffs’ summary-judgment motion for 2026-09-29, the government’s opposition and cross-motion for 2026-11-10, and plaintiffs’ reply for 2026-12-22. Nothing is decided and no rung moves: playbook §3, a pending suit does not block. Recorded because this record is structurally worst at noticing a downward move (ADR 0005), and a vacatur here would take one of the four “other laws” back out. https://www.courtlistener.com/docket/73395244/national-fair-housing-alliance-v-consumer-financial-protection-bureau/
  • Resolved (review, 2026-10-01). The triage found the 2026-06-09 event in the Justice Department’s press releases, which entered the Corpus this round. The research above, which says Title VII “is where the least has happened”, predates it. The opinion itself (justice.gov/olc/media/1444871/dl, found through justice.gov/olc/opinions) was read in full and is now the event’s second citation. It reaches the Uniform Guidelines on Employee Selection Procedures (29 CFR part 1607) by name, together with EEOC’s “interpretative rules and guidance documents”. It holds them unconstitutional insofar as they impose liability on disparate effects alone. It does not withdraw anything, because only the Commission can. The EEOC has not acted since: the Federal Register API lists 13 EEOC documents from 2026-06-01 to 2026-10-01, and none touches part 1607. The 2026-07-06 rescission of the affirmative-action guidelines (part 1608) is a different object. The only in-window document naming the Uniform Guidelines is OPM’s 2026-07-31 rule, which is #108’s. A Commission vote or Federal Register document rescinding part 1607 for private employers would be a further partial event.
Action
eliminate
Object
Disparate impact liability under Title VII and other laws
ID
1596