The Federal Trade Commission (FTC) has issued a policy statement indicating that it will not pursue claims based on disparate-impact or 'unfair discrimination' theories. Chairman Andrew N. Ferguson emphasized that such claims are incompatible with the Constitution, as they impose liability without evidence of intent to discriminate.

This decision aligns with President Donald Trump's executive order aimed at eliminating disparate-impact liability across various contexts. The FTC's statement highlights that the agency lacks the statutory authority to consider claims under this legal theory, which often requires race-based analysis of outcomes.

The policy statement also outlines how the FTC will handle discrimination claims moving forward. While it will continue to assert disparate-treatment claims under the Equal Credit and Opportunity Act, it will maintain its focus on consumer protection under Section 5 of the FTC Act.

As part of this new policy, the FTC reviewed past decisions that relied on statistical analyses for disparate-impact liability and reached agreements to modify compliance obligations for specific companies, including Napleton Inc. and Passport Auto Group. The Commission's vote to authorize this policy statement and the agreements was unanimous at 2-0.