President Donald Trump signed two recent executive orders that will affect employers. The first order narrows the scope of discrimination claims, while the second order broadens enforcement activities aimed at promoting highway safety.

On April 23, Trump signed the Order to Restore Equality of Opportunity and Meritocracy. This executive order eliminates or diminishes the use of disparate impact as a basis for liability in discrimination cases.

The United States Supreme Court adopted the disparate impact theory in a 1971 case, Griggs v. Duke Power Co. The court held that even when an employer makes an employment decision that is facially neutral and not made with discriminatory intent, the employer can be held liable for discrimination because of the disparate impact on a protected status.

Before the Civil Rights Act took effect in 1965, a power company had disallowed Black employees from working in some departments. The Civil Rights Act, outlawing racial discrimination, made this practice illegal. But the power company required a high school diploma before Black employees could be hired or transferred into these departments.

The Supreme Court noted that at that time, 34 percent of White North Carolina men had finished high school, but only 12 percent of Black men had done so. Thus, the high school diploma required significantly disadvantaged Black applicants and allowed the perpetuation of the previous racial discrimination.

The Supreme Court found that no evidence existed that employees at the power plants in question without diplomas performed any differently than did employees with diplomas. The Supreme Court held that bona fide educational requirements are valid, but the power company could show no bona fide purpose for the diploma requirement in this case.

Thus, the Supreme Court found Duke Power liable for race discrimination because the hiring policy disadvantaged Black employees without sufficient business justification for the diploma requirement.

The new executive order:

1. Revokes presidential actions that approved of disparate-impact liability and sets in motion broader reform;
2. Directs all agencies to deprioritize enforcement of statutes and regulations that include disparate-impact liability;
3. Instructs the U.S. Attorney General to repeal or amend all Title VI (racial nondiscrimination) regulations that contemplate disparate-impact liability.
4. And, perhaps most importantly, directs the administration to assess and take appropriate action on all pending investigations, lawsuits and consent judgements that rely on a theory of disparate-impact liability.

This order does not and cannot eliminate disparate-impact legislation entirely. After Griggs, Congress amended the Civil Rights Act to include disparate-impact liability, and eliminating disparate-liability would require an act of Congress, which is unlikely to occur. But it will make it more difficult for federal agencies to assert these claims against employers.

On March 1, Trump signed an executive order designating English as the official language of the United States. And on April 28, Trump signed Enforcing Commonsense Rules of the Road for America’s Truck Drivers, an executive order directing enforcement of existing federal law that requires commercial vehicle drivers to read and speak English sufficiently to communicate with the general public, understand highway traffic signs and signals, and to complete official records.

This order does not change the law. The Federal Motor Carrier Safety Administration (FCMSA) has required English proficiency, or at least sufficiency, for decades. But the FMCSA has inconsistently enforced this requirement for years. The executive order specifically cites Obama-era guidance that reduced enforcement efforts and rescinds that 2016 policy.

For example, the FMCSA regulations specifically require roadside inspectors charged with enforcing highway safety laws to take drivers out of service if they violate English proficiency requirements. But recent FMCSA guidance directed inspectors only to cite and release the drivers to continue their journeys.

The new executive order not only orders the enforcement of FMCSA English proficiency requirements, it directs the FMCSA to adopt new guidance for enforcement personnel, revising inspection procedures to ensure that FMCSA regulations are enforced.

Companies who employ professional drivers should expect heightened enforcement of English proficiency requirements in the near future. Companies whose loads are stranded in transit when drivers are removed from service face significant costs and logistics issues. Employers should immediately start reviewing hiring practices and the files of their current drivers to further compliance with English proficiency requirements.

Federal employment law and the enforcement of these laws are rapidly changing, creating uncertainty and confusion for employers. The Employers Council makes available to its members resources on employment law changes. And Employers Council consulting and enterprise-level members may speak directly with our employment attorneys at any time for advice on properly applying employment laws.