FTC says it will no longer bring disparate impact or unfair discrimination claims
In a 2-0 policy statement, the Federal Trade Commission said it lacks legal authority to pursue liability theories that do not require evidence of intent to discriminate, and will review past decisions based on statistical analysis.
The Federal Trade Commission issued a policy statement on Aug. 7, 2026 declaring that it will not pursue claims based on disparate impact or theories of “unfair discrimination,” according to a press release from the agency. Commissioners voted 2-0 to adopt the statement, which was issued under the authority of Chairman Andrew Ferguson.
The statement rejects liability theories that impose responsibility without evidence of intent to discriminate and says the Commission has no legal authority to apply them. The FTC argued that disparate impact analysis would require the agency to analyze outcomes on the basis of race, and that because nearly every policy or practice affects groups differently, such a theory would have no limiting principle. Had Congress intended to grant that kind of sweeping authority, the statement said, it would have said so explicitly.
Under the new approach, the Commission will continue to bring disparate treatment claims under the Equal Credit Opportunity Act, and will treat Section 5 of the FTC Act strictly as a consumer protection statute. The agency also said it will re-examine past decisions that rested on statistical analysis, and has entered agreements modifying certain compliance obligations for individuals connected to matters involving Napleton Inc., Passport Auto Group and Coulter Motor Company LLC.
The FTC framed the move as following the policy direction of an executive order signed by President Trump last year on restoring equality of opportunity and meritocracy, which directed agencies to eliminate disparate impact liability to the maximum extent possible.