NEW YORK: An Introduction to Labor & Employment: Mainly Plaintiffs

The Future of Fair Hiring in New York: Can Local Laws Withstand a Federal Assault on Disparate Impact?

The landscape of employment discrimination law in New York is in constant flux, shaped by dynamic economic conditions, evolving legal interpretations, and a rapidly shifting political climate. As employment discrimination attorneys in New York, we are uniquely positioned to observe and navigate these changes, which profoundly impact our clients and the broader legal profession.

Nothing related to employment law has dominated the news cycle quite like President Trump’s executive orders, which have signaled a major shift in enforcement priorities, effectively abandoning disparate impact theory and aggressively targeting diversity, equity and inclusion (DEI) practices. This political tidal change could have far-reaching implications for employment discrimination practices.

President Trump’s recent Executive Order, titled “Restoring Equality of Opportunity and Meritocracy” (the “Executive Order”) seeks to “eliminate the use of disparate-impact liability in all contexts to the maximum degree possible,” arguing that “[d]isparate impact liability imperils the effectiveness of civil rights laws by mandating, rather than proscribing, discrimination.”

The concept of disparate impact liability was firmly established by the Supreme Court’s decision in Griggs v. Duke Power Co. Therein, Chief Justice Burger, delivering the opinion for the Court, wrote, “[d]iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed. What is required by Congress is the removal of artificial, arbitrary, and unnecessary barriers to employment when the barriers operate invidiously to discriminate on the basis of racial or other impermissible classification.” Historically, the principle established in Griggs has been used to remedy practices that, although neutral on their face, perpetuate systemic discrimination.

In 1991, Congress codified disparate impact liability in Title VII, establishing a burden of proof for cases brought under Title VII whereby the impact of an employment practice on a certain protected group is balanced against business necessity. Thus, for more than 30 years, disparate impact has been firmly established by Congress and the courts.

Nonetheless, the Executive Order has enormous potential to shift the landscape of disparate impact discrimination in that it directs all agencies to deprioritize enforcement of disparate impact liability, including Title VII. Whereas private representation is typically available for persons seeking to enforce other forms of Title VII liability, disparate impact cases rely disproportionately on public agency involvement due to the unavailability of compensatory and punitive damages.

In addition to its substantive impact on federal government activities, the Executive Order expresses a broad political position, repeatedly characterizing disparate impact as unlawful and unconstitutional. This echoes similar treatment given to DEI initiatives in prior executive orders. While executive orders, of course, cannot overturn statutory or case law, their ability to influence as expressions of what the law should be by the nation’s most visible political representative is significant, particularly when those views are reiterated and expounded by the legal arms of the executive branch.

Moreover, given the current political makeup of the government, with Republican control of the Presidency and the Senate through at least 2026, we are also likely to see a number of judicial appointees at the District Court and Circuit Court levels who are supportive of or at least receptive to some of the broader concepts expressed in President Trump’s executive orders on disparate impact and DEI as well as a rightward shift in the judiciary as a whole. While judges possess wide-ranging authority in all areas of the law, there is perhaps no area more rife for judicial impact than employment discrimination, where cases regularly turn on considerations of intent and what a reasonable person would believe. Take, for example, an employee who complains that a company was engaging in discriminatory practices by failing to implement DEI policies, or, conversely, an employee who complains that a company was engaging in discriminatory practices by implementing DEI policies. Could either of them, or both, reasonably believe that their complaints were opposing an unlawful employment practice?

So what does this mean for our role as lawyers? In a sense, not very much. Where ambiguity exists, it is our role to zealously advocate for our clients and it is easy to take on the position that one is simply serving the clients’ interests. Yet, lawyers also have a duty to the law that supersedes the interests of a client when the two conflict. For better or worse, disparate impact is the unequivocal law of the land. By all means, make whatever non-frivolous arguments that may exist to reverse existing law, for without that the law will not grow and evolve, but it is important to remember that it is our obligation to uphold the law, especially where the enforcement arms of the government have abdicated their responsibilities.

In practical effect, the law remains the law and whatever future developments may occur at the federal level, they are almost certainly counterbalanced by state and local legislation and regulations, which have aggressively expanded in the contravening direction over the past several years. As such, for the vast majority of us, our practices will remain unaffected, at least in the short term. Employers must still be advised that disparate impact claims are viable and modulate their practices accordingly, whereas employees are still free to advance claims of discrimination based on disparate impact under federal, state and local law.

The concern rather lies in the future, and because the law often changes moment to moment in imperceptible degrees, we must be watchful and cognizant of how President Trump’s executive orders shape the future development of the law, both explicitly and implicitly.