The Future of Disparate Impact Claims in Education-Related Litigation

Host: Hello, and welcome to Prevention and Protection, the United Educators risk management podcast. Today’s episode, “The Future of Disparate Impact Claims in Education-Related Litigation,” is hosted by Hillary Pettegrew, a Senior Risk Management Counsel at United Educators. She is joined by Amanda Brahm with the law firm McLane Middleton to discuss the legal concept of disparate impact and its role in discrimination litigation.

A reminder to listeners that you can find other UE podcasts, as well as UE risk management resources, on our website, ue.org. Our podcasts are also available on Apple Podcasts and Spotify. Please note that this is a risk management podcast, and nothing in this podcast should be considered legal advice. Now here’s Hillary.

Hillary Pettegrew: Thank you. And I’m happy to introduce our guest speaker, Amanda Brahm, who is the Vice Chair of the Education Law Group at the law firm McLane Middleton in Portsmouth, N.H. Amanda has broad experience as a risk manager and litigator for colleges, universities, and independent schools, and her expertise is enhanced by having served in Title IX, equity, and compliance roles at several higher education institutions. Amanda, thanks very much for joining me.

Amanda Brahm: Thanks for having me, Hillary. I’m looking forward to today’s program.

Pettegrew: So am I. Today, Amanda and I will discuss disparate impact, which to strip it down to the basics, is a legal principle in employment discrimination law that was first recognized by the U.S. Supreme Court in the early 1970s. Since April 2025, however, there’s been some confusion over whether and to what extent, disparate impact remains viable following Executive Order (EO) 14281 titled Restoring Equality of Opportunity and Meritocracy. For the most part, today we’ll talk about employment law.

But as we’ll see, disparate impact analysis has played a role in some student discrimination claims also. Now, spoiler alert for our audience. Amanda and I agree that disparate impact remains an area of potential exposure for both K-12 schools and higher education institutions, which we’ll get to shortly. First, however, Amanda, could you explain (1) what disparate impact claims are, and (2) how they differ from disparate treatment claims?

Brahm: Of course. Disparate treatment and disparate impact are both theories of unlawful employment discrimination. The difference between them is the element of intent. I’ll start by explaining disparate treatment, which is the legal theory of discrimination that our listeners will probably be most familiar with. A disparate treatment claim involves intentional discrimination and requires proof of discriminatory intent. It means that an employer took action because of a protected characteristic.

And as an aside, for our listeners who don’t deal with these issues on a regular basis, when we talk about protected characteristics, for example, in the context of a claim under Title VII of the Civil Rights Act, we mean a person’s race, color, religion, sex, or national origin. All of these are protected characteristics.

A disparate impact claim, on the other hand, does not require a showing of intentional discrimination. That means a facially neutral policy with a disproportionately negative effect on a protected group could still result in liability for an institution — even though there may not be intentional discrimination at play. As you mentioned, Hillary, courts have recognized disparate impact theory for decades. In a 1971 case, Griggs v. Duke Power Co., an employer’s transfer policy was challenged.

The transfer policy in that case required employees to have a high school diploma and a particular score on an aptitude test in order to qualify for higher-paying jobs. The basis for the challenge to the policy was that the transfer criteria disproportionately excluded Black employees and prevented them from obtaining better jobs.

The Supreme Court agreed and held that facially neutral employment practices with discriminatory effects can be unlawful unless the practice is consistent with business necessity. Twenty years later, Congress codified disparate impact directly into Title VII, making it statutory law.

Pettegrew: Amanda, is Title VII the only federal law under which a plaintiff could bring a disparate impact claim?

Brahm: No, it isn’t. You could have a federal age discrimination claim based on disparate impact under the ADEA and disability discrimination claims under the Americans with Disabilities Act, or the ADA, may also be based on disparate impact. And in addition, don’t forget about state law discrimination claims, which also may be based on disparate impact.

And finally, there’s also Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin by certain employers that receive federal financial assistance. And Title VI is also interpreted to cover discrimination against employees belonging to religious groups, where that discrimination is based on their ancestry, ethnic characteristics, or perceived heritage.

However, there is no private right of action for disparate impact claims under Title VI, meaning that people who claim they’ve suffered unintentional discrimination can’t bring a lawsuit. But historically, the Department of Justice (DOJ) could have pursued enforcement action against organizations for disparate impact claims. That, however, has changed, as we’ll discuss in a moment.

Pettegrew: How do courts presented with a disparate impact claim analyze these issues?

Brahm: It’s a three-step process. So under Step One, typically the plaintiff presents statistical proof that a specific policy or practice has a significantly disproportionate negative effect on a protected group. As we will discuss later, it’s slightly different in the ADA context, where a plaintiff doesn’t have to show a negative effect on a whole group.

But generally, if a plaintiff can make this modest showing, then they have established what we call a prima facie case, which means that the plaintiff has made the minimum showing necessary to proceed with the claim.

If that happens, then we move on to Step Two, where the employer then has a chance to demonstrate that the challenged policy or practice is job-related and consistent with business necessity.

If the employer meets that burden at Step Two, then that brings us to step three, where the plaintiff can rebut by showing an equally effective, less discriminatory alternative that the employer refused to adopt.

Pettegrew: Amanda, could you share a few examples of disparate impact claims that have been brought against schools?

Brahm: Yes, I have three case illustrations that I think are helpful for schools to know about. The first is a Title VII sex discrimination case called Freyd v. University of Oregon, which survived summary judgment in 2021. In that case, the university had a facially neutral retention bonus policy, where faculty members who received job offers from other schools could get a retention bonus if they declined the competing offer and stayed at the university.

The problem was that this bonus policy resulted in a female faculty member earning between 14,000 and $42,000 less per year than four male colleagues with comparable rank and tenure. Each of those four male professors had received retention raises or had at least one retention negotiation.

The female plaintiff faculty member then put forward evidence that female professors throughout the department earned an average of $15,000 less per year than male professors, and relied on that data to make out a disparate impact claim.

The next case is an ADA disability discrimination case, also brought by a faculty member in a case called Oross v. Kutztown University. In that case, a professor had a disability that affected his immune system and caused him to have a heightened risk of contracting COVID-19.

In 2020, the professor taught classes online, but in 2021, he sought accommodations to work from home, which the university denied. The professor brought a disparate impact claim under the ADA. As I mentioned earlier, establishing a prima facie case under the ADA is a little different, and the professor in this case did not submit any statistical evidence to support his claim.

However, the court still held that the professor carried his burden simply by establishing that he alone was screened out due to his disability. Meaning in the ADA context, unlike in Title VII, a plaintiff may satisfy his prima facie case for a disparate impact claim by demonstrating an adverse impact on himself rather than on an entire group.

And finally, I have another ADA disability discrimination case. This one involves student rather than employee claims, and this case is called Payan v. Los Angeles Community College District. Here, two students [who were blind] allege that they encountered widespread accessibility barriers that limited their ability to participate in educational opportunities. For example, the students experienced inaccessible course software and textbooks, and the school’s websites and registration systems were incompatible with the students’ screen-reading software.

This lawsuit has a very long and complicated procedural history, but it answered important questions regarding disparate impact claims. Critically, the Ninth Circuit Court of Appeals ruled that individuals with disabilities can pursue claims under the ADA using a disparate impact theory, establishing that unintentional discriminatory accessibility barriers are, in fact, actionable.

Ultimately, the case was tried before a jury under three different legal theories, including disparate impact, failure to accommodate, and disparate treatment. The jury found multiple violations by the university, some of which involved intentional conduct. And I’ll just add that in addition to the litigation regarding the disparate impact claim, this is also a significant case because of the damages that were awarded to the plaintiffs.

Since intentional conduct was found, the two plaintiffs were able to recover a total of $242,500, which included damages for lost educational opportunities such as inability to access course material and participate fully in class discussion. The trial court initially reduced that award, but in early 2026, the Court of Appeals ordered the trial court to reinstate the full amount of the verdict.

Pettegrew: Thanks for that background, Amanda. Now let’s turn to Executive Order 14281. Could you summarize that EO and explain whether it’s changed the legal landscape for disparate impact claims, and if so, how?

Brahm: Sure. As you explained in your introduction, this executive order called Restoring Equality of Opportunity and Meritocracy, was signed on April 23, 2025, and the order declares it to be U.S. policy to eliminate the use of disparate impact liability in all contexts to the maximum degree possible. To do that, the EO contained several key directives. For example, it directed the Attorney General (AG) to catalog all disparate impact regulations and initiate their repeal.

The Attorney General and the Equal Employment Opportunity Commission (EEOC) were also required to review all pending investigations and lawsuits. All agencies had to evaluate consent judgments and injunctions, and the AG was to assess whether state disparate impact laws are preempted by federal law. With that being said, though, there is a critical limitation that our listeners need to understand — and that’s that an executive order cannot repeal a federal statute.

So Title VII, the ADEA, and the ADA remain the law of the land, because only Congress can change that.

Pettegrew: So how have federal agencies responded to the EO?

Brahm: Let’s start with the EEOC. On Sept. 15, 2025, there was an internal EEOC memo directed at all offices to close pending disparate-impact-only charges by Sept. 30, 2025. The memo also directed the EEOC to issue right-to-sue letters to claimants by Oct. 31, 2025, allowing them to proceed in federal court without EEOC involvement.

When I talk about disparate-impact-only claims, that means a standalone, disparate impact claim that does not also involve a claim of disparate treatment. Mixed charges, on the other hand, are those that involve both disparate impact and disparate treatment. And those would remain open with the EEOC, but only the disparate treatment component will be investigated.

The EEOC actions were challenged in late 2025 through a lawsuit called Cross v. EEOC, where an Amazon driver sued the EEOC after it closed her disparate impact investigation. The court dismissed that case on the basis of standing, because it found that the Amazon driver had no judicially cognizable injury, since she still had a right-to-sue letter that allowed her to sue Amazon directly.

In addition to the EEOC, we’ve also seen action by the DOJ. As I mentioned earlier, in a case called Alexander v. Sandoval, the United States Supreme Court determined that there was no private right of action for disparate impact under Title VI. However, DOJ historically interpreted Title VI to provide it with enforcement powers.

On Dec. 9, 2025, the DOJ changed course and issued a final rule that eliminated disparate impact liability from the regulations that implement Title VI. The rule was issued without notice and comment, which is worth pointing out because of the sweeping impact the new rule will have on Americans’ abilities to challenge bias in higher education.

Pettegrew: Well, I agree these changes would seem to have a very significant impact at the federal level. What about at the state level, Amanda? Have there been any changes eliminating the possibility of disparate impact claims under state anti-discrimination laws?

Brahm: Action at the state level has been varied. Massachusetts, for example, appears to be moving in the opposite direction from the federal government. It still has robust disparate impact protections, and MCAD, which is the state agency comparable to the EEOC, still investigates those claims. And there is also pending legislation in Massachusetts that would codify and expand disparate impact for government policies.

By contrast, in 2025, New Hampshire introduced legislation — although it was ultimately unsuccessful — which explicitly condemned the judicial doctrine of disparate impact consistent with the federal shift.

Of course, those are just two examples, so I recommend that educational institutions consult attorneys in their own jurisdictions about potential changes to the use of disparate impact analysis under state discrimination laws.

Pettegrew: Amanda, what do you think all of this means in a practical sense for plaintiffs who want to pursue a discrimination case relying on disparate impact against an educational institution?

Brahm: Well, first, let’s address private lawsuits at the federal level, where I don’t think much has really changed. As we know, there was no private right of action under Title VI, so there’s no change there. And there remains a viable path forward for Title VII, ADEA, and ADA plaintiffs to sue in court.

The major difference is that now institutions won’t face lawsuits based only on disparate impact claims brought by the EEOC, but schools should realize that private lawsuits are still very attractive to plaintiffs’ lawyers because they can often recover their fees under these statutes.

Next, let’s consider anticipated agency actions. I expect that statistics-driven litigation will continue to be a focus for agencies, although now perhaps through pattern-and-practice claims as opposed to disparate impact claims.

It has been widely speculated that DEI policies and practices will come under scrutiny by the EEOC through these pattern-and-practice cases. For example, the EEOC has recently initiated an action against Nike that has made headlines. Specifically, the EEOC has attempted to compel Nike to produce information related to allegations that the company discriminated against white workers as a result of Nike’s diversity, equity, and inclusion-related objectives.

According to the EEOC, the agency is investigating systemic allegations of DEI-related intentional race discrimination. Specifically, Nike may have engaged in a pattern or practice of disparate treatment against white employees and applicants in hiring, promotion, demotion, or separation decisions, as well as mentoring and other career development programs and opportunities.

So I think DEI practices and employment is one area where we will see agencies focus. And those inquiries may still be driven by statistical analyses even outside the context of a disparate impact claim.

Pettegrew: What are some areas that you would consider ripe for disparate impact claims in school litigation?

Brahm: I think there are several. And I’ll start with AI hiring tools. Here, there is a concern that algorithms that are trained on historically biased data can reproduce disparate outcomes, and this is an emerging and rapidly growing area of risk as schools incorporate more and more AI tools into their practices. AI bias is certainly something that we are monitoring closely.

Also, on the employment front, as always, schools should be mindful when conducting a reduction in force or a RIF, and it is important to ensure that no protected group is affected disproportionately. Finally, I believe that some student-facing issues present real potential exposure for schools. These include disability accommodation failures and inaccessible digital content, as we discussed earlier in the Payan case.

Pettegrew: Amanda, do you have any practical recommendations as to how schools can manage these risks in light of the stated objectives of EO 14281 and the movement we’ve been seeing from federal agencies?

Brahm: Yes, this administration will definitely test a school’s practices. My two major recommendations to manage these risks are to first carefully examine your decision-making to ensure that your policies and practices are creating legal risk. You should consider conducting an audit. If your school chooses to do that, I would recommend working with legal counsel, so that way the review is protected by attorney-client privilege.

Obtaining data proactively can help schools address risks before a claim is ever brought forward. And second, and I know we always say this, documentation is critical. You need appropriate documentation to support your employment decisions given this administration’s focus on merit-based hiring.

Pettegrew: Thanks, Amanda. And particularly from UE’s perspective, I think your point about documentation is a good place to conclude our conversation. Poor or missing documentation about the reasons a school, college, or university took an action is a serious weakness in a number of discrimination claims we see, and too often the institutions can’t overcome it regardless of any other evidence they might have. So on that cautionary note, let’s wrap things up.

Once again, all our listeners can find other podcast episodes on our website, ue.org, as well as on Apple Podcasts and Spotify. Employees of member institutions can also access our extensive collection of free, education-specific risk management resources on the UE website. And finally, if any members have questions about risk management issues on your campus, we invite you to email our team of Risk Management consultants at risk@ue.org.

I’d like to thank our audience for listening and give a final special thank you to Amanda for sharing her expertise about the changes in federal disparate impact litigation.

Brahm: Thanks, Hillary. I was happy to be here.

Host: From United Educators insurance, this is the Prevention and Protection Podcast. For additional episodes and other risk management resources, please visit our website at ue.org.