The U.S. Department of Justice (DOJ) has issued a final rule that fundamentally changes existing civil rights enforcement under Title VI of the Civil Rights Act of 1964 by eliminating disparate-impact liability cases. The new rule states that DOJ will focus its enforcement efforts on intentional discrimination rather than on disparate impact. According to the DOJ, the enforcement shift complies with the original statutory language of Title VI, U.S. Supreme Court precedent, and the goal of ensuring equal treatment under the law. The change also restores a narrow interpretation of discrimination under Title VI.
Title VI prohibits institutions and organizations that receive federal financial assistance from discriminating based on certain protected characteristics. Therefore, any entity that receives federal funds, including universities, hospitals, and state agencies, cannot discriminate against individuals based on race, color, or national origin.
Historically, the DOJ interpreted Title VI to include both intentional and disparate-impact discrimination and enforced both types of cases. Disparate impact centers on neutral policies, procedures, or practices that ultimately have disproportionate effects on people with protected characteristics, despite a lack of discriminatory intent. As a result of this statutory interpretation, previous administrations and civil rights advocates have used disparate-impact analysis to challenge policies in education, housing, and environmental justice.
Accordingly, affected entities that receive federal funding will no longer be subject to federal civil rights enforcement except in cases of clear discriminatory intent. Therefore, these entities may wish to review any organizational policies and procedures that were designed to avoid disparate impact discrimination, such as recruitment practices or admissions criteria. Any training and compliance materials should focus on intentional discrimination rather than on disparate impact liability.
Nonetheless, other agency rules, including those implicating Title VII employment discrimination law, remain in effect. The DOJ may not pursue disparate impact enforcement actions, but private entities may be able to bring disparate impact claims under other statutes. As such, entities must be cautious to maintain policies that safeguard broader civil rights duties.
The shift in discrimination enforcement under Title VI is indicative of a larger debate between focusing on intentional and disparate impact discrimination. Critics of the new rule argue that eliminating disparate impact litigation may weaken protections against systemic inequities and allow entities to harm marginalized communities through unintentional discriminatory policies. On the other hand, supporters of the rule state that focusing solely on discriminatory intent avoids quotas and forced decisions based on race or other protected characteristics.
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