Sneak Preview: DOJ Removes Title VI’s Disparate Impact Liability
(The following was excerpted from a recent Thompson Grants Compliance Expert article.) The Department of Justice (DOJ), in a recent final rule, rejected its obligation to identify and rectify unintended discriminatory practices of entities that receive federal funding, rescinding regulatory provisions under Title VI of the Civil Rights Act of 1964 (42 U.S.C. §2000(d)-1) that “prohibit conduct having a disparate impact.”
“For decades, [DOJ] has used disparate impact liability to undermine the constitutional principle that all Americans must be treated equally under the law. No longer,” said Attorney General Pamela Bondi, noting that the agency’s new position would more closely align its regulations to the language that Congress initially intended when it enacted Title VI. “This [DOJ] is eliminating its regulations that for far too long required recipients of federal funding to make decisions based on race.”
Recipients of federal financial assistance are prohibited by Title VI from discriminating on the basis of race, color or national origin in any “program or activity receiving federal financial assistance” (see ¶511 in the Federal Grants Management Module). On Aug. 22, 2024, the U.S. District Court for the Western District of Louisiana issued a permanent injunction enjoining DOJ from imposing or enforcing its disparate impact requirements under Title VI in the state of Louisiana. In response, President Trump in April issued Executive Order 14281, Restoring Equality of Opportunity and Meritocracy, which ordered the attorney general to “initiate appropriate action to repeal or amend the implementing regulations for Title VI for all agencies to the extent they contemplate disparate impact liability.”
Disparate impact refers to seemingly neutral practices in employment, housing and other areas that adversely affect one group of people having a protected characteristic mor than another group. Although such protected classes vary by statute, most federal civil rights laws consider race, color, religion, national origin and sex to be protected characteristics, and some laws include disability status and other traits as well. Since 1973, DOJ has required recipients of federal funds to consider the disparate impacts of their policies and practices that may disproportionately harm particular demographics.
(The full version of this story has now been made available to all for a limited time here.)
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