What You Need to Know About Trump's New Executive Order on Civil Rights

Yesterday, President Trump signed an executive order that doesn't make headlines like border policies or tax cuts, but might actually affect your daily life more than you realize. It's targeting something called "disparate impact" liability – a cornerstone of civil rights enforcement for over 50 years.

What's This Order Actually Doing?

The executive order signed yesterday aims to eliminate disparate impact analysis across federal agencies. It frames disparate impact as a "pernicious movement" that forces racial balancing and undermines merit. It instructs agencies to "deprioritize enforcement" of laws using this concept and begin dismantling regulations based on it.

In plain English: the order tells government agencies to stop using a key tool that's helped identify hidden discrimination for half a century.

To understand disparate impact, let's start with a simple example.

Imagine two groups applying for the same job through an online application system. Both groups have similar qualifications and work ethic, but one group consistently gets far fewer interviews.

It turns out the application website works perfectly on newer computers but glitches on older models, causing applications to be submitted with errors or missing information. Because of historical economic disparities, one group is much more likely to be using older computers.

The company isn't intentionally discriminating - they're judging each application they receive fairly. But an invisible technical barrier is preventing qualified applicants from one group from even being considered. Without disparate impact analysis, this hidden obstacle would likely never be discovered or addressed, since the company could truthfully say they never intended to discriminate and judge each application they actually receive on its merits.

Disparate impact analysis doesn't force the company to hire unqualified people - it simply reveals the hidden technical barrier and prompts the company to fix it so everyone's applications can be properly submitted and evaluated. That's not forcing equal outcomes - it's ensuring genuine equal opportunity to be considered.

The language in the order describes disparate impact as forcing employers to consider race and engage in racial balancing. It claims to promote a "colorblind society" and "meritocracy," which sounds appealing on the surface. After all, who doesn't want fairness?

But here's the reality check: disparate impact isn't about giving anyone special treatment or guaranteeing equal outcomes. It's about making sure seemingly neutral rules aren't actually rigged games in disguise. It's a tool for spotting when the playing field isn't actually level, even when the rulebook claims it is.

As civil rights attorney Sherrilyn Ifill once put it: "It's not enough to open the door if there's a brick wall right in front of it." Disparate impact analysis is what helps us see that brick wall, even when it's not visible from where the door-opener stands.

Where Did "Disparate Impact" Come From?

Before diving deeper, let's talk about where this legal concept came from, because it has a pretty interesting origin story.

Back in 1971, the Supreme Court heard a case called Griggs v. Duke Power Co. The power company had a history of segregating Black workers into the lowest-paying department. After the Civil Rights Act passed in 1964, they suddenly required a high school diploma and passing two aptitude tests for higher-paying positions – requirements they hadn't needed before.

Willie Griggs and 12 other Black employees challenged this policy. They showed these new requirements had nothing to do with job performance but screened out Black applicants at a much higher rate due to historical inequalities in education.

The Supreme Court ruled unanimously in favor of the workers. Chief Justice Warren Burger (a Nixon appointee, by the way) wrote that the Civil Rights Act prohibited not just obvious discrimination but also "practices that are fair in form, but discriminatory in operation."

This created what we now call "disparate impact" doctrine– the recognition that discrimination doesn't always come with a smoking gun memo saying "let's discriminate." Sometimes it hides in seemingly neutral policies that create discriminatory results.

Congress later explicitly wrote this concept into various civil rights laws, and courts have applied it for decades. It wasn't controversial or partisan when created– it was seen as common sense enforcement of civil rights laws.

The Legal Framework You Didn't Know Was Protecting You

To understand why this matters, let's break down how disparate impact actually works:

First, someone has to show that a policy creates statistical disparities affecting protected groups. But that's just step one - not the end of the analysis.

Then, whoever created the policy gets to show there's a legitimate business necessity for it. If hiring firefighters who can carry heavy equipment quickly is essential to saving lives, that's obviously legitimate, even if it creates some statistical disparities.

Finally, if there's a good reason for the policy, the question becomes: is there an alternative that could serve the same purpose with less discriminatory effect?

This three-part test doesn't ban policies just because they affect groups differently. It just requires that if they do, there needs to be a good reason, and no better way to accomplish the same goal. It's common sense, not some radical approach.

The executive order frames this reasonable process as somehow forcing quotas or racial balancing. But that's misleading. Courts have consistently rejected quotas. Disparate impact analysis just helps ensure that when disparities exist, they reflect genuine differences in qualifications - not hidden barriers or outdated assumptions.

Trump's Troubled History with Racial Discrimination

There's an irony in President Trump signing an order that weakens protections against discrimination, given his own history in this arena. In the 1970s, Trump Management Corporation was sued by the Department of Justice for violating the Fair Housing Act by discriminating against Black rental applicants.

Federal investigators sent both Black and white "testers" to Trump properties. Black applicants were told no apartments were available, while white applicants were shown available units. Some Trump employees testified that applications from Black renters were marked with a "C" for "colored" and routinely rejected.

Trump settled the case in 1975, signing a consent decree requiring the company to change its rental practices and take steps to desegregate its properties. No admission of guilt was required, but the company had to take out ads informing minority renters of their rights and listing vacancies with a local Urban League office.

Just three years later, the government charged Trump with violating the settlement by continuing to discriminate. This second case was also settled.

This pattern extended beyond housing. In the 1980s, former employees of Trump's casinos in Atlantic City reported that Black dealers would be removed from the floor when certain high-rollers arrived. A former executive recalled Trump saying, "Black guys counting my money! I hate it... I think that the guy is lazy. And it's probably not his fault, because laziness is a trait in blacks."

During the Central Park Five case in 1989, Trump took out full-page ads in New York newspapers calling for the return of the death penalty for five Black and Latino teenagers accused of assaulting a white jogger. Even after they were exonerated by DNA evidence and another person confessed to the crime, Trump refused to apologize or acknowledge their innocence as recently as 2019.

More recently, as president, Trump referred to African nations as "shithole countries" in a 2018 meeting with lawmakers, questioned why the U.S. would want immigrants from these countries rather than places like Norway, and suggested Haitian immigrants "all have AIDS."

This history makes the executive order's framing all the more questionable. Is this really about promoting merit and equal opportunity? Or about making certain forms of discrimination that he's engaged in harder to challenge?

The Politics of Division and Demonization

This executive order fits into a broader pattern of policies designed to divide Americans along racial, religious, and cultural lines. By framing disparate impact analysis as somehow anti-meritocracy or unfair to certain groups, the administration creates a false narrative that protecting civil rights somehow comes at others' expense.

We've seen this playbook repeatedly—presenting equality as a zero-sum game where progress for marginalized groups must come at the cost of the majority. This framing is not only factually incorrect but deliberately designed to stoke resentment and fear.

Look at how the executive order characterizes disparate impact as a "pernicious movement" that "endangers" American principles. This inflammatory language doesn't just attack a legal doctrine—it demonizes the very concept of identifying subtle forms of discrimination.

The administration will likely use this framing to portray any opposition to the order as anti-American or anti-meritocracy. Those who point out how the order enables discrimination will be accused of supporting quotas or preferential treatment, even though disparate impact has never required either.

As legal scholar Kimberlé Crenshaw observed, "The problem with this colorblind rhetoric is that it's often used to short-circuit conversations about serious racial disparities that continue to exist." By eliminating tools to identify these disparities, the order makes it easier to deny they exist at all—and to paint those who raise concerns as troublemakers or divisive forces.

This approach doesn't just harm those directly affected by discrimination—it poisons our national conversation about equality and opportunity. It forces us into artificial camps rather than allowing us to work together to ensure everyone has a fair chance.

Real-World Examples That Might Hit Close to Home

Let's get concrete about how this legal doctrine has protected everyday Americans. These aren't hypothetical scenarios - they're real cases where disparate impact analysis made a difference:

Employment Barriers That Affect Everyone

The Unnecessary Credit Check: Several major employers used to run credit checks for positions that had nothing to do with handling money. Studies showed these checks disproportionately excluded Black and Latino applicants due to historical wealth gaps. But here's the kicker - they also screened out plenty of qualified white applicants affected by medical debt, divorce, or simply being young with limited credit history. When challenged under disparate impact, companies had to justify how credit scores predicted job performance for positions like stocking shelves or answering phones. Many couldn't, and dropped the practice - opening opportunities for workers across racial lines.

Veterans Returning to Work: After serving their country, many veterans found themselves screened out by hiring tests that favored recent college graduates over practical experience. Disparate impact analysis helped identify when these tests weren't actually measuring skills needed for the job, but were creating artificial barriers for those with military backgrounds. This protection benefited veterans of all races.

The Experience Trap for Older Workers: When a tech company implemented a policy requiring all applicants to have "no more than 3-5 years of experience" for certain roles, it created a disparate impact on workers over 40. The company claimed they wanted "fresh perspectives" but couldn't show why more experienced workers couldn't do the job effectively. This affected older workers across all demographic groups who found themselves locked out despite their qualifications.

Religious Discrimination Examples

"No Headwear" Policies: Some employers implement dress codes prohibiting all head coverings in the workplace, claiming it's for "professional appearance" or "safety reasons." While this rule applies to everyone on paper, it disproportionately affects Muslims who wear hijabs, Sikhs who wear turbans, and Orthodox Jewish men who wear yarmulkes. Disparate impact analysis helps distinguish between policies with genuine safety concerns and those that could be modified with reasonable accommodations.

Weekend Work Requirements: When employers require all employees to work rotating weekend shifts without exception, this policy disproportionately affects observant Jews (Sabbath observers), Seventh-day Adventists, and certain other religious groups who cannot work on their Sabbath days. Disparate impact analysis has helped identify when these scheduling requirements aren't actually necessary for business operations and when reasonable accommodations could be made.

English-Only Workplace Rules: Some employers implement strict English-only policies that prohibit any non-English language, even during breaks or in non-customer-facing roles. While facially neutral, these policies can disproportionately impact religious communities where native language is intertwined with religious practice and identity, such as among certain Orthodox Jewish, Muslim, or Hindu communities. Disparate impact analysis helps distinguish between legitimate business communication needs and overly broad restrictions.

Housing and Neighborhood Impacts

Keeping Families Out: Some towns have zoning regulations prohibiting multi-family housing or requiring minimum lot sizes of several acres. While these policies don't mention race or class explicitly, they effectively prevent affordable housing development. Disparate impact analysis has helped challenge these exclusionary practices that keep out young families, working-class households, and people struggling to find affordable housing in communities with good schools and safe streets. This affects Americans of all backgrounds who can't afford million-dollar homes.

The High-Cost Rental Requirements: When landlords require income of 3-4 times the monthly rent (instead of the standard 3x), they disproportionately exclude households headed by women (particularly single mothers) who statistically earn less than male-headed households. These policies also hit rural white families and seniors on fixed incomes especially hard. Disparate impact analysis has helped identify when these heightened requirements weren't necessary for ensuring rent payment.

Lending and Financial Security

The Subprime Mortgage Crisis: Before the 2008 financial crash, lenders were steering qualified borrowers toward subprime loans with higher interest rates and worse terms, even when they qualified for prime loans. Disparate impact analysis revealed this affected minority neighborhoods at much higher rates. Plenty of white borrowers in certain zip codes also got pushed into these predatory loans, losing their homes and life savings when the market collapsed. So, it's not just minorities who are affected. Without disparate impact analysis, these practices might never have been identified.

Auto Insurance Redlining: Some insurance companies charged higher rates to drivers based solely on their zip code, regardless of driving record. While this hit minority neighborhoods hardest, it also meant white residents living in or near these areas paid inflated rates unrelated to their actual risk as drivers. Disparate impact challenges helped expose these practices that hurt consumers across racial lines.

The History of Redlining and Why It Still Matters Today

Let's talk about redlining - one of the clearest examples of why disparate impact analysis is still needed. Starting in the 1930s, the federal government's Home Owners' Loan Corporation created maps of American cities with neighborhoods color-coded by lending risk. Areas with any significant Black population were marked in red - hence "redlining" - and deemed highest risk, regardless of the actual economic status of residents.

This wasn't ancient history - it continued officially until the Fair Housing Act of 1968, and unofficially for years afterward. The impact? By the 1960s, it was nearly impossible for residents in redlined areas to get conventional mortgages or home improvement loans, leading to declining property values and deteriorating housing stock.

While redlining targeted Black neighborhoods, it didn't only affect Black families. White families living in or near these redlined areas also found themselves unable to sell their homes for fair value, get loans for improvements, or build generational wealth through homeownership. The practice locked in disadvantage by geography as much as race.

Even more eye-opening: the effects of redlining persist to this day. A 2018 study by the National Community Reinvestment Coalition found that 74% of neighborhoods redlined in the 1930s remain lower-income today, and 64% are still minority-majority neighborhoods. The wealth gap this created affects millions of Americans who never experienced explicit discrimination themselves but inherited its economic consequences.

Disparate impact analysis has been crucial in identifying modern lending practices that continue these patterns without explicitly mentioning race- like when banks opened fewer branches in formerly redlined areas or when mortgage lenders applied stricter standards to loans in certain zip codes. Without this tool, these subtler forms of discrimination become almost impossible to challenge.

How This Affects Rural and Working-Class Communities

One of the most overlooked aspects of civil rights enforcement is how strongly it protects working-class and rural Americans. Take these examples:

Rural Hospital Closures: When hospitals close in rural areas, disparate impact analysis has helped identify when these closures disproportionately affect the elderly and disabled.

Predatory For-Profit Colleges: These institutions often target veterans and working-class students of all races with promises of career advancement, while leaving them with crushing debt and worthless credentials. Disparate impact analysis has been crucial in challenging their deceptive practices.

Factory Town Lending: When industries leave small towns, property values plummet. Some lenders subsequently refuse to make loans in these areas, making economic recovery nearly impossible. Disparate impact analysis helps challenge this modern-day redlining of rural and post-industrial communities.

The executive order frames disparate impact as something that primarily affects racial minorities, but the reality is that it protects vulnerable Americans of all backgrounds from policies that disadvantage them without good reason.

As disability rights activist Judy Heumann powerfully stated: "Discrimination doesn't discriminate." The same tools that identify barriers affecting one group often reveal barriers affecting others. By dismantling these tools, the order harms the very communities it claims to protect.

The Coming AI Discrimination Crisis This Order Will Enable

This executive order couldn't come at a worse time, especially when we consider how algorithmic decision-making is transforming our society. As I discussed in my recent article on "Actuarial Murder", we're entering an era where artificial intelligence and algorithms increasingly determine who gets jobs, loans, housing, and opportunities.

In that piece, I pointed out how "the most devastating acts of violence often leave no fingerprints. They happen through policy decisions, institutional practices, and systemic choices that diffuse responsibility while maximizing harm." The elimination of disparate impact analysis perfectly embodies this concept – it removes our primary tool for identifying and addressing discrimination that's hidden behind seemingly neutral algorithms.

AI systems learn from historical data that reflects past discrimination. When a hiring algorithm is trained on data showing that successful employees have historically been from certain backgrounds, it will favor similar candidates – not because it's programmed to discriminate, but because it identifies patterns in biased historical data. This creates what my article called "diffuse acts of violence"– harm that can't be traced to any single malicious decision but emerges from systemic choices that compound over time.

Without disparate impact analysis, we'd have no effective way to challenge these outcomes. Companies could hide behind claims that their algorithms are "objective" or "data-driven," even as these systems reproduce and amplify historical patterns of discrimination at unprecedented scale.

As mathematician Cathy O'Neil bluntly puts it in her book "Weapons of Math Destruction": "Big Data processes codify the past. They do not invent the future." Without tools to identify when algorithms are simply reinforcing historical patterns of discrimination, we risk cementing these patterns for generations to come.

The False Shield of Fiduciary Duty

This executive order connects directly to what I called "The False Shield of Fiduciary Duty" in my previous article. Corporate leaders often hide behind claims that they "had no choice" because their fiduciary duty to shareholders required certain actions. Similarly, this executive order presents the elimination of disparate impact as necessary for business efficiency and meritocracy.

But as I wrote, "this common refrain represents a fundamental misunderstanding of both the legal and ethical principles at play." Just as corporate fiduciary duty doesn't actually require maximizing short-term profit at all costs, preventing discrimination doesn't require abandoning merit-based decision-making. These are false binaries that serve to protect power rather than promote genuine fairness.

The executive order frames disparate impact analysis as forcing corporate America to choose between compliance and effectiveness. But the reality is that disparate impact doctrine has never prohibited legitimate business requirements – it simply asks that when policies create disparate outcomes, there's a genuine necessity, and no better alternatives exist.

Writer Anand Giridharadas cuts to the heart of this issue when he says: "What is presented to us as pragmatism—that we cannot have both fairness and effectiveness—is often merely power defending itself." The false choice between meritocracy and addressing discrimination serves those who benefit from the status quo, not those seeking genuine equality of opportunity.

Desperation and Its Consequences

When people are systematically denied opportunities— whether in employment, housing, or education— and have no legal recourse to challenge these barriers, desperation follows. History shows us that when legitimate avenues for change are closed, people find other ways to express their pain and frustration.

The executive order eliminating disparate impact liability creates precisely these conditions. By removing a key legal tool that has helped identify and address hidden discrimination, it forces people to endure unfair barriers with diminishing options for peaceful remedy.

Remember the example I referenced from my "Actuarial Murder" article about the United Healthcare CEO who was killed after his company's policies denied life-saving care to patients? As I wrote there: "The huge media coverage of his murder was a testament to the problem we face—the legal system was well-equipped to prosecute the killer, but not so great at holding United Healthcare accountable for the harm they caused. Ultimately, someone felt that retributive justice was the only path forward."

When systems fail to provide justice through legitimate channels, some turn to desperate measures. This doesn't justify violence, but it helps explain why it happens. As Martin Luther King Jr. observed, "A riot is the language of the unheard." By eliminating tools that help people be heard through legal processes, this executive order increases the likelihood that frustration will find other outlets.

The bitter irony is that the Trump administration will likely use any resulting unrest to further demonize the very communities harmed by this order. We've seen this playbook before—create conditions that generate desperation, then use the resulting conflict to justify even harsher measures against those affected. It's a cynical cycle that serves political interests at the expense of community wellbeing.

Actuarial Murder and Institutional Violence

This executive order is a perfect example of what I've called "actuarial murder"– policy decisions that cause predictable harm while maintaining plausible deniability. As I wrote, "When we calculate the probable outcomes—as actuaries would—we see how these policies mathematically ensure certain students will be pushed out of education and into the criminal justice system."

The same applies here. By removing disparate impact analysis as a tool, this order ensures that certain forms of discrimination will continue unchallenged. The harm will be statistically predictable, affecting specific communities with mathematical certainty, even though no single actor explicitly intended discrimination. This is precisely the "diffuse acts of violence" I described – harm that happens through "policy decisions, institutional practices, and systemic choices that diffuse responsibility while maximizing harm."

When companies implement seemingly neutral policies without scrutiny, when algorithms make decisions based on historical patterns without oversight, when housing and lending practices exclude certain communities without explicit discrimination – these are all forms of what I called "institutional violence," where "the greater the scope of harm, the more we distance ourselves from its moral weight."

In my article, I quoted Terry Pratchett's character Mr. Pump, who tells the protagonist: "You have ruined businesses and destroyed jobs. When banks fail, it is seldom bankers who starve. Your actions have taken money from those who had little enough to begin with. In a myriad small ways you have hastened the deaths of many." This same principle applies to policies that eliminate civil rights protections – the harm may be diffuse and hard to trace to any single decision, but it's no less real for those who experience it.

The Practical Effects: What Happens Now?

So what does this executive order actually do in practice?

First, it directs federal agencies to "deprioritize enforcement" of disparate impact provisions across multiple laws and regulations. This effectively tells businesses and institutions that certain forms of discrimination will face less scrutiny, even if they remain technically illegal.

Second, it instructs the Attorney General to review and potentially dismantle existing consent decrees based on disparate impact– including agreements that companies and municipalities voluntarily entered to resolve discrimination cases.

Third, it signals a broader shift in how civil rights will be enforced, treating efforts to identify subtle discrimination as themselves discriminatory.

The immediate effects might not be dramatic or headline-grabbing. You won't see "Whites Only" signs appear overnight. Instead, the change will likely be gradual– hiring algorithms that quietly filter out certain applicants, lending policies that subtly disadvantage certain neighborhoods, zoning regulations that effectively exclude certain families.

Without the analytical tools to identify these patterns, discrimination becomes much harder to address. It's like removing the check engine light from your car– the problem doesn't go away, you just lose the ability to detect it before it causes major damage.

As Supreme Court Justice Ruth Bader Ginsburg once wrote in her dissent in a key affirmative action case: "The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination." This executive order does the opposite – it closes our eyes to these effects and pretends that ignoring discrimination will somehow eliminate it.

The Bottom Line: Why This Matters to Everyone

The Civil Rights Act has helped create a more fair society for everyone– not by guaranteeing outcomes but by helping ensure genuine equal opportunity. Dismantling tools that make it effective doesn't help create a meritocracy – it just makes it easier for various forms of unfairness to hide in plain sight.

Remember: civil rights protections aren't just for "other people"– they protect you, your family members, and your neighbors too. When we lose the ability to identify subtle forms of discrimination, everyone except those doing the discriminating loses out.

The executive order frames eliminating disparate impact as promoting American values, but what's more American than ensuring everyone gets a fair shot based on their actual abilities rather than arbitrary barriers?

In a country founded on the idea that all people are created equal, we should all be concerned about losing tools that help make that principle a reality in everyday life.