During the first months of the Trump Administration, the President issued an unprecedented number of Executive Orders. One of them, “Restoring Equality of Opportunity and Meritocracy,” rejected the legal theory of disparate impact that for more than half a century has been a part of anti-discrimination law in the United States.

Endorsed by the Supreme Court in its 1971 decision in Griggs v. Duke Power Company, the disparate impact theory allows for a finding of wrongdoing in violation of the law on the basis of discriminatory outcomes, even in the absence of proof of discriminatory intent. The disparate impact approach was subsequently codified by Congress and became one basis for enforcing anti-discrimination law across a wide range of settings, including employment, housing, education and with respect to federal programs.

The Trump Executive Order describes disparate impact doctrine as a dangerous device that would “transform America’s promise of equal opportunity into a divisive pursuit of results preordained by irrelevant immutable characteristics.” The Executive Order portrays the disparate impact approach as necessarily contrary to meritocracy and its premise that people should advance based on their own efforts and talents rather than the group to which they belong.

As with many of the Trump Administration’s interventions, there is legitimate reason for concern about disparate impact, but the Trump Administration’s wholesale rejection of the approach is overwrought and misguided.

Critics of disparate impact liability justifiably worry that some proponents of the approach view it as a license to reject policies and practices simply because they lead to uneven outcomes among groups. For example, some commentators urge selective universities to abandon reliance on standardized test scores in deciding which applicants to admit, given that African Americans and Latinos tend to score lower on such scores than Asian American or white applicants. This approach resonates with the idea of anti-racism, which became enormously popular during the last several years. Ibram Kendi, its most visible proponent, has made clear his view that formally race neutral practices (like reliance on test scores) should be rejected if they produce racially uneven outcomes, even if that means sacrificing the pursuit of meritocracy. To be sure, disparate impact can go wrong. Trying to equalize group outcomes at the expense of all other considerations is a bad idea.

But this worry is insufficient to justify the wholesale rejection of the disparate impact approach. The disparate impact approach is protean, and performs two other important functions, each of which the Trump Administration has embraced. Disparate impact provides a means of ferreting out covert discrimination even in the absence of evidence that would satisfy the standard of proof for intentional discrimination.

Consider, for example, the facts in Griggs v. Duke Power Company, the case where the Supreme Court first endorsed the disparate impact approach. The defendant in the case, North Carolina’s Duke Power Company, had openly discriminated against African Americans until the passage of the 1964 Civil Rights Act flatly prohibited such discrimination. The company then decided to assign people to jobs based on their scores on an intelligence test. African Americans, who under Jim Crow had been denied access to quality schooling, unsurprisingly performed less well than whites on the tests, and thus were unable to access the good jobs. Noting that scores on such tests had never been shown to predict job performance at Duke Power Company, the Supreme Court struck down the intelligence test criterion. (The Court also invalidated a high school diploma requirement, which similarly disadvantaged African Americans, who often were not provided high school during the Jim Crow era.)

“While critics of disparate impact often fixate on its attention to outcomes, it is important to note that unequal outcomes are not sufficient to warrant invalidation of a challenged practice.”

It’s easy to see Griggs as a case where the employer wanted to continue to exclude black employees from good jobs. It would use the intelligence test (and the high school diploma requirement) to do indirectly what the 1965 Civil Rights Act prohibited the employer from doing directly. Such indirect discrimination would have escaped prohibition were it not for the disparate impact approach, which allows the court to inquire into practices that disproportionately disadvantage entire groups.

More recently, the Trump Administration has (perhaps unintentionally) invoked the disparate impact approach itself. The Administration has done so in furtherance of its suspicion that America’s elite universities are discriminating against conservatives in the admission of students and the hiring of faculty. To substantiate that intuition, the Administration has called on universities to make available their hiring and admissions records, so that the Administration can compare the characteristics of the applicants to those who are admitted or hired. This is the disparate impact approach in action, plain and simple. The Trump Administration is acting on the basis of the belief (wholly rational) that covert forms of discrimination are difficult to prove without looking at the sort of outcomes to which disparate impact directs attention.

The third function that disparate impact serves is directly counter to the depiction of disparate impact in the Trump Executive Order. In fact, disparate impact can nudge institutions toward more meritocratic decision-making. Giving employers, for example, unfettered freedom to hire on whatever basis they want may result in nepotism and other undeniably non-meritocratic practices. Indeed, one important effect of the 1964 Civil Right Act was to undermine the old-boys network that had long shaped access to economic opportunity, while excluding talented women and minorities from positions in which they could excel.

While critics of disparate impact often fixate on its attention to outcomes, it is important to note that unequal outcomes are not sufficient to warrant invalidation of a challenged practice. In Griggs, for example, the Supreme Court noted that the hiring criteria that disproportionately excluded black applicants had not been shown to bear any relation to successful performance on the job. Standards that are demonstrably related to job performance are permissible, notwithstanding their disparate impact. To the extent the threat of disparate impact liability encourages employers and institutions to discard irrelevant criteria and instead adopt only standards that further legitimate institutional goals, disparate impact is a pro-meritocracy policy. It unsettles the status quo bias that might otherwise lead institutions to do things the way they’ve always been done, even when those practices do not evaluate individuals on the basis of their efforts and talents. Disparate impact blocks employers and other institutions from unthinkingly excluding talented people from opportunities in the workplace and elsewhere. A proponent of meritocracy should embrace some form of disparate impact.

The Trump Administration is correct that the threat of disparate impact liability encourages institutions to consider the effects of potential policies on identifiable groups, based not only on race, but also sex, age, disability, and pregnancy. According attention to the effects of a potential policy on such groups may be costly in terms of both time and money, and it may be in tension with the ideal that institutional decision-making should be blind to group identity.  But that arguable cost of the disparate impact approach has to be balanced against its benefits.

The federal government is well positioned to shape the use of disparate impact. In 2001, the Supreme Court took away the right of individuals to challenge certain government programs based on disparate impact. As a result, disparate impact doctrine in some circumstances can be enforced by the federal government, but not by individuals who feel aggrieved.

The Trump Administration would have done well to recognize disparate impact as a useful tool rather than seeing it as part of the problem.

Ralph Richard Banks is the Jackson Eli Reynolds Professor of Law at Stanford Law School and a professor, by courtesy, at the Stanford Graduate School of Education. He is the Founder and Faculty Director of the Stanford Center for Racial Justice, an initiative that aims to confront and counter the polarization that plagues American society through an analysis of contentious racial issues free from the orthodoxies of Left and Right. His forthcoming book, The Big Sort: How College Can Make or Break the American Dream, will be published in 2025.

Professor Banks is the co-author of two leading law school casebooks, Racial Justice and the Law: Cases and Materials (2016) (with co-editors Kim Forde-Mazrui, Guy Uriel Charles and Cristina Rodriguez) and Family Law in a Changing America (2nd ed. 2024) (with co-editors Douglas NeJaime, Joanna Grossman, and Suzanne Kim). He is also the author of the trade book Is Marriage for White People? How the African American Marriage Decline affects Everyone (2011; paperback 2012), described by the Los Angeles Times as a “must read,” by the New York Times as “important” and by the Wilson Quarterly (the official publication of the Woodrow Wilson International Center for Scholars) as one of the Top Ten Books of 2011. The book has been featured by a wide range of media outlets, including The Wall Street Journal, The Economist, Essence magazine, The Village Voice, Time, Newsweek/The Daily Beast, and also NPR (local and national) CNN, ABC News/Nightline, The View, and Fox News, among many others.