Title VI of the Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin by entities receiving federal financial assistance, including federal government contractors and grant recipients.  As discussed in our prior articles, a new executive order, issued April 23, 2025, has revoked and amended several provisions in Title VI related to the disparate impact theory of liability.  Here is a breakdown of the regulatory language at issue, taken directly from the regulations themselves, with italics added to highlight the key focus of each regulation:

28 C.F.R. 42.104(b)(2): GONE entirely

A recipient, in determining the type of disposition, services, financial aid, benefits, or facilities which will be provided under any such program, or the class of individuals to whom, or the situations in which, such will be provided under any such program, or the class of individuals to be afforded an opportunity to participate in any such program, may not, directly or through contractual or other arrangements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respects individuals of a particular race, color, or national origin.

28 C.F.R. 42.104(b)(iii) – Remove the word “effect”

In determining the site or location of facilities, a recipient or applicant may not make selections with the purpose or effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any program to which this subpart applies, on the ground of race, color, or national origin; or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of the Act or this subpart.

28 C.F.R. 42.104(b)(6)(ii) GONE entirely

Even in the absence of such prior discrimination, a recipient in administering a program may take affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin.

28 C.F.R. 42.104(c) Employment practices.

(1) Whenever a primary objective of the Federal financial assistance to a program to which this subpart applies, is to provide employment, a recipient of such assistance may not (directly or through contractual or other arrangements) subject any individual to discrimination on the ground of race, color, or national origin in its employment practices under such program (including recruitment or recruitment advertising, employment, layoff, or termination, upgrading, demotion, or transfer, rates of pay or other forms of compensation, and use of facilities). That prohibition also applies to programs as to which a primary objective of the Federal financial assistance is

(i) to assist individuals, through employment, to meet expenses incident to the commencement or continuation of their education or training, or

(ii) to provide work experience which contributes to the education or training of the individuals involved. The requirements applicable to construction employment under any such program shall be those specified in or pursuant to part III of Executive Order 11246 or any Executive order which supersedes it.

(2) GONE entirely

In regard to Federal financial assistance which does not have providing employment as a primary objective, the provisions of paragraph (c)(1) of this section apply to the employment practices of the recipient if discrimination on the ground of race, color, or national origin in such employment practices tends, on the ground of race, color, or national origin, to exclude persons from participation in, to deny them the benefits of or to subject them to discrimination under the program receiving Federal financial assistance. In any such case, the provisions of paragraph (c)(1) of this section shall apply to the extent necessary to assure equality of opportunity to and nondiscriminatory treatment of beneficiaries.

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This five-part series addresses the Trump Executive Order seeking to end discrimination protections based on a disparate impact theory of liability.  Our approach is threefold:

1. Explore the why – Part II of our series focuses on the origins of disparate impact theory and what may be driving the administration’s current attack.
2. Assess the what and how – Parts III and IV look at federal laws and regulations, while Part V looks at state and local laws to consider what is gone already, what is targeted for revision, and how that might be effectuated.
3. Consistently reflect back on the impact – Parts III and V particularly highlight what this means for employers, where the change is potentially beneficial to them, and what the guideposts are going forward.

By Tracey I. Levy