Amidst a golden, morning haze in October 2016, an implosion brought down the faded red power house and rusting boilers of the Dan River Steam Station in Eden, North Carolina.^[1] A day later, another implosion brought down the station’s towering precipitators.^[2] In two clouds of dust, the aging energy plant—once owned by the Duke Power Company—was reduced to a pile of rubble.^[3]

Nine years after the Dan River Steam Station’s implosion, disparate impact—a foundational discrimination claim which emerged from events that happened within the station’s walls—now faces the same fate as the old energy plant. On April 23, 2025, the Trump administration issued Executive Order 14821, calling for federal agencies to “deprioritize” disparate impact claims in all contexts.^[4] Five months later on September 15, 2025, the Equal Employment Opportunity Commission (EEOC) announced it would stop bringing litigation on behalf of disparate impact plaintiffs.^[5]

Established in 1971 by Griggs v. Duke Power Co., 401 U.S. 424 (1971), and codified by Congress twenty years later, disparate impact liability allows plaintiffs to claim discrimination by showing that a policy has discriminatory effects on people of a protected class (i.e., a minority group, race, and/or gender).^[6] Importantly, unlike disparate treatment claims, disparate impact claims do not require the plaintiff to show explicit bias, which can be easy for defendants to hide and difficult for plaintiffs to prove.^[7]

Executive Order 14821’s potential impact on marginalized people is obvious and widespread, spanning employment, housing, and education law. It threatens to retrench many of the systemic barriers legal advocates have been fighting to dismantle over the past centuries.

Griggs demonstrates how disparate impact liability can be used in employment law to combat covert discrimination. In Griggs, employer Duke Power Company had openly discriminated against Black workers prior to the Civil Rights Act of 1964, allowing them to work only in the plant’s Labor Department, the lowest-paying of five operating departments.^[8] After the Civil Rights Act of 1964, however, Duke Power began to conceal its discriminatory practices with facially-neutral policies. Rather than explicitly stating that Black employees could only work in the Labor Department, Duke Power began requiring that all workers both possess a high school education and pass two aptitude tests to work in non-Labor Department positions. The result was a continuation of the power plant’s pre-Civil Rights Act management strategy, with 13 of the 14 Black workers at the 95-employee plant assigned to work in the Labor Department.^[9]

In a unanimous decision, the Supreme Court held that Duke Power’s policies, while facially neutral, disparately impacted Black workers in violation of Title VII of the Civil Rights Act of 1964.^[10] Moreover, Duke Power could not defend its policy by claiming it was a business necessity because neither the diploma requirement nor aptitude tests were proven relevant to job performance. Indeed, numerous employees outside of the Labor Department who had either not completed high school or not passed the general intelligence tests were still able to perform satisfactorily.^[11] With its ruling, Griggs broke barriers imposed upon the plaintiffs by both racist internal management and a broader history of school segregation in North Carolina.^[12] In so doing, it also established a means for future workers to combat unique, systemic barriers in their workplace.

Beyond employment law, disparate impact litigation has also been used to combat discriminatory housing policies. In 2024, the Department of Justice (DOJ) sanctioned Pennsylvania’s Citadel Federal Credit Union after finding that Citadel lent to Black and Hispanic communities at only a third the rate of peer institutions.  This disparity was driven by subtly discriminatory policies, including to discourage people from majority-Black and Hispanic neighborhoods from seeking home loans and locating almost all of its branches in majority-  neighborhoods around Philadelphia.^[14] Among other sanctions, Citadel was required to invest at least $6 million in a loan subsidy to increase majority-Black and Hispanic neighborhoods’ access to home mortgages, home improvements, and home refinance loans, and to open three new branches in predominantly Black and Hispanic neighborhoods.^[15] As such, the ruling against Citadel chipped away at redlining in Philadelphia, allowing Black and Hispanic Philadelphians greater access to the dignity and financial security of home ownership, and providing an opportunity for future plaintiffs in similar situations to break the same barriers.

Finally, disparate impact has allowed parents and students to challenge discriminatory education policy. In 2014, the Department of Education’s Office of Civil Rights (OCR) found that four different branches of Harmony Public Schools—a public charter school system in Houston and Fort Worth, Texas—were using admissions policies that disparately impacted English Language Learner (ELL) and disabled students.^[16] The OCR identified three specific practices as having a significantly negative impact on ELL and disabled student admission: the consideration of students’ prior criminal and disciplinary records; the lack of translation services for necessary documents; and the requirement of birth certificates and social security numbers.^[17] As a result of the OCR investigation, the Harmony Public Schools system was required to re-evaluate their disciplinary record policy and documentation requirements for disparate impact toward its students, and to provide interpretation and translation services for limited English proficient parents.^[18]

Under the Trump administration’s Executive Order, claims like those in Griggs, Citadel, and Harmony will become impractical, if not impossible, for plaintiffs to bring. While plaintiffs in Title VII employment cases will retain their right to plead disparate impact, the EEOC will now only issue plaintiffs a right to sue, and will no longer investigate, litigate, or attempt to settle such claims on plaintiffs’ behalf.^[19] As a result, disparate impact plaintiffs alone will have to bear the costs of arguing their disparate impact claims, imposing significant additional barriers for low-income workers to combat covert workplace discrimination.^[20] Additionally, by preventing federal agencies from bringing disparate impact claims, Executive Order 14821 makes it effectively impossible for individual plaintiffs to bring Title VI disparate impact claims (like that in the Harmony case, or any other race, color, or national origin claims against discriminatory programs receiving federal funds) because the Supreme Court has already refused to recognize a private right of action in Title VI disparate impact cases.^[21]

Although the Trump administration claims that eliminating disparate impact claims will “encourage meritocracy” instead of “race- or sex-based favoritism,”^[22] the loss of disparate impact claims will instead have the opposite effect. To combat favoritism, Title VII explicitly allows employers to retain disparately impactful policies if an employer can prove they are “job related” and consistent with a “business necessity,” and the plaintiff cannot prove there is a less discriminatory alternative.^[23] Disparate impact plaintiffs already carry a heavy burden of proof, with the Supreme Court requiring that Title VII plaintiffs both identify a “specific”^[24] employment practice that has made a discriminatory impact and provide a “strong basis in evidence” of that disparate impact.^[25] In short, when the Court rules in favor of disparate impact plaintiffs, it is not doing so out of “favoritism,” but rather to remedy severe, unjustifiable discrimination against qualified workers, deserving borrowers, and capable students.

The death of disparate impact means systemic retrenchment for marginalized people; through the rebirth of discriminatory employment requirements and rules, predatory housing policies, and school segregation, and through the ever-mounting hurdles impoverished people must overcome to achieve upward economic mobility. The soil under the Dan River Steam Station’s shores has since reclaimed the land Duke Power used to occupy. Now, the Trump administration appears set to reclaim the progress made by the thirteen brave plaintiffs at Duke Power, as well as those who have followed in their footsteps to fight systemic discrimination in the decades since.

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Footnotes

^[1] With a final blast, the Dan River Steam Station passes into history, Duke Energy (Oct. 31, 2016), https://news.duke-energy.com/releases/with-a-final-blast-the-dan-river-steam-station-passes-into-history [https://perma.cc/6B32-2ACK]; Duke Energy, Duke Energy implodes retired Dan River Steam Station (YouTube, Oct. 30, 2016), https://www.youtube.com/watch?v=qRSpcJo78DU [https://perma.cc/GY5V-R6FV].

^[2] Duke Energy, supra note 1.

^[3] Id.

^[4] Exec. Order No. 14821, 90 Fed. Reg. 17537 (Apr. 23, 2025); Emily F. Keimig & Carissa J. Davis, Another Blow to Disparate Impact—the EEOC’s Action to Close Out Disparate Impact Charges, Venable LLP (Oct. 16, 2025), https://www.venable.com/insights/publications/2025/10/another-blow-to-disparate-impact-the-eeocs-action. [https://perma.cc/JJ5F-FLH5].

^[5] Keith S. Anderson & Annie R. Yuengert, Final Impact? EEOC Closing of Disparate Impact Investigations is Challenged, Bradley Arant Boult Cummings LLP (Oct. 29, 2025), https://www.employmentlawinsights.com/2025/10/final-impact-eeoc-closing-of-disparate-impact-investigations-is-challenged/ [https://perma.cc/N9DV-PGVV].

^[6] Disparate Impact Civil Rights Claims: A Crucial Tool Under Attack, Nat’L Inst. for Workers’ Rts. (Nov. 3, 2025), https://niwr.org/2025/11/03/disparate-impact/#_ftn4 [https://perma.cc/V4Z8-NFQW].

 

^[7] Id.

^[8] Griggs v. Duke Power Co., 401 U.S. 424, 427 (1971).

^[9] Griggs v. Duke Power Co., 420 F.2d 1225, 1228 (4th Cir. 1970), cert. granted, 401 U.S. 424 (1971).

^[10] Griggs, 401 U.S. at 436; 42 U.S.C. § 2000(e) (1964).

^[11] Griggs, 401 U.S. at 431–32.

^[12] Griggs, 420 F.2d at 1239 (“Since for generations [B]lacks have been afforded inadequate educational opportunities and have been culturally segregated from white society, it is no more surprising that their performance on ‘intelligence’ tests is significantly different than whites’ than it is that fewer [B] lacks have high school diplomas.”).

^[13] Consent Order at 1-2, U.S. v. Citadel Fed. Credit Union, Civil Action No. 2:24-cv-05426 (E.D. Pa. 2024).

^[14] Id.

^[15] Id.

^[16] Harmony Pub. Schs., OCR Docket No. 06-11-5004 (U.S. Dep’t of Educ. Office of C.R. 2014).

^[17] Id.

^[18] Id.

^[19] Anderson & Yuengert, supra note 5.

^[20] Julian Burns King, What is my Employment Discrimination Case Worth?, King & Siegel LLP (May 5, 2021), https://www.kingsiegel.com/blog/what-is-my-employment-discrimination-case-worth/#:~:text=A%20COMPLAINT%20CAN%20BE%20EXPENSIVE,pay%20anything%20unless%20you%20win [https://perma.cc/QND3-PQFU].

^[21] Alexander v. Sandoval, 532 U.S. 275, 293 (2001) (“Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under § 602.8. We therefore hold that no such right of action exists.”).

^[22] Exec. Order No. 14821, 90 Fed. Reg. 17537 (Apr. 23, 2025).

^[23] 42 U.S.C. § 703(k)(1)(A)(i).

^[24] Ward’s Cove Packing Co. v. Atonio, 490 U.S. 642, 657 (1989).

^[25] April J. Anderson, Cong. Rsch. Serv., IF13057, What is Disparate-Impact Discrimination? (2025); 29 C.F.R. § 1607.4 (2026).