We expect the EEOC to respond by dropping any existing disparate impact investigations and pending litigation while continuing to process disparate treatment (i.e., intentional discrimination) claims. However, the E.O. does not amend any civil rights laws and will not affect the ability of private litigants to bring disparate impact claims under Title VII. The E.O. will have a greater impact on entities that receive federal financial assistance governed by Title VI.
The risk of systemic discrimination claims from applicants and employees is still very much present, and employers should continue to monitor their processes to assess and mitigate risk.