Jacob D. Schramm Esq., Campbell Durrant, P.C. | April 2025
Under the direction of President Trump and Attorney General (AG) Pam Bondi, the Department of Justice (DOJ) has recently abandoned four lawsuits initiated by the prior administration which alleged that state and local public safety employers used hiring practices that resulted in a disparate impact on black and female applicants. By branding hiring practices that seek to avoid disparate impact as forms of “illegal discrimination,” the Trump administration has bred uncertainty in the landscape of disparate impact discrimination claims. Amidst this uncertainty, public employers should ensure that their hiring practices are “neutral” and consistent with business necessity and seek to mitigate any disparate impact in their hiring procedures.
Under the Biden administration, the DOJ launched lawsuits against the state of Maryland; Cobb County, Georgia; Durham, North Carolina; and South Bend, Indiana, alleging that the use of written examinations, certain background checks, and physical fitness tests by these entities in their police and fire departments resulted in a lower number of black and female applicants being hired. These lawsuits alleged discrimination under the theory of “disparate impact,” prohibited by the Civil Rights Act of 1964, which refers to the use of a “facially neutral policy or practice” that results in a disproportionately negative impact on members of a “protected class” (including groups based on race, national origin, sex, and religion, among others). For example, the DOJ’s complaint against the City of Durham alleged a violation of the Civil Rights Act because 37% of black test-takers failed a pass-fail written test while only 11% of white test-takers failed, resulting in a disparity between black and white applicants who were invited for interviews. The complaint charged Durham officials with using a discriminatory process that was neither job-related nor consistent with business necessity.
On January 21, 2025, President Trump ordered executive departments to “terminate all discriminatory and illegal” preferences, policies, activities, guidance, enforcement actions, and “consent orders.” Weeks later, AG Bondi issued two memoranda to DOJ employees affirming that “equal treatment under the law means avoiding identity-based considerations in employment” and directing that DOJ decisions “should narrow the use of ‘disparate impact’ theories that effectively require the use of race- or sex-based preferences.” In the following month, these directives were carried out when the DOJ abandoned the four lawsuits that were advanced against public employers in the prior four years. AG Bondi characterized the same practices which the DOJ had decried as discriminatory as “race-neutral mechanisms,” and criticized the Biden administration’s DOJ for “lower[ing] [hiring] standards and endanger[ing] public safety.”
The theory of disparate impact discrimination arose out of the recognition that the Civil Rights Act’s overt prohibition against intentional discrimination did not adequately protect individuals of a protected class from discrimination. While Congress codified “disparate impact” in the Act’s 1991 amendments, federal courts have varied in their interpretation and analysis of the theory and have grappled with the tension that can result when an employer takes purposeful action to discard results generated from “neutral” hiring practices simply to avoid liability for disparate impact discrimination. The DOJ’s still-extant guidelines state that an employer may refute a disparate impact charge with a justification that its employment practice is legitimate, important, and integral to the employer’s mission. However, even if an employer identifies a legitimate business need for the practice, the employer must also demonstrate that it considered any feasible alternative that may be comparably effective in meeting legitimate objectives but with less disparate impact.
Although the DOJ has followed President Trump’s directive by withdrawing these lawsuits, the Act and its prohibition against disparate impact discrimination remain in effect. The recent actions of the DOJ demonstrate how employers must navigate their legal obligations against a now-murky backdrop of federal guidance. As such, employers should continue to develop hiring procedures that are consistent with business necessity and do not discriminate against any protected class, considering all possible alternative hiring procedures that might meet their needs without resulting in a disparate impact among protected applicants.