(The opinions expressed here are those of the author, a

columnist for Reuters.)

By Jenna Greene

May 15 (Reuters) - Wondering what civil rights

enforcement - or lack thereof - might look like for the next

four years? The U.S. Federal Trade Commission offers a glimpse.

In a little-noticed court filing, the agency last week moved to

amend its administrative complaint against a large automotive

dealership group, dropping allegations that car salespeople in

Texas charged Black and Latino buyers hundreds of dollars more

than white customers for the same add-on products such as

extended warranties or special paint coatings.

In abandoning the claims, the agency in court papers said it

was acting out of "an abundance of caution" to comply with an

executive order issued by President Donald Trump halting federal

enforcement of cases involving disparate impact liability.

A longstanding tool for combatting discrimination, disparate

impact actions target policies that may appear neutral but

disproportionately hurt a protected group.

As my Reuters colleague Daniel Wiessner explained, such claims

often arise in the employment context, where, for example, women

and older or disabled workers have challenged employers'

physical fitness tests. Employers can counter that a policy with

a disparate impact is legal when it's necessary to operate a

business.

Here, the FTC's case against three dealerships owned by Asbury

Automotive Group ( ABG ), a publicly traded company that

reported $17 billion in revenue last year, pleaded a

disparate-impact theory of liability under the Equal Credit

Opportunity Act.

The company did not respond to a request for comment, nor did

its outside counsel from Foley & Lardner. It has

counter-sued the FTC in federal court in Fort Worth, Texas,

challenging the constitutionality of the agency's in-house

administrative forum. The case remains pending.

According to the FTC's lawsuit filed in August, one Asbury

dealership charged Black consumers on average $298 more than

white customers for the same add-ons, while Latino consumers

paid an average of $214 more.

Charging higher prices to consumers based on their race runs

afoul of the equal credit law, which prohibits creditors from

discriminating against credit applicants based on factors

including race, color and national origin, the FTC argued at the

time.

In backpedaling now, the FTC, which did not respond to

requests for comment, said in court papers that it was acting

"in light of Executive Order No. 14281."

Titled "Restoring Equality of Opportunity and Meritocracy,"

Trump's order directs federal agencies to deprioritize

enforcement of all statutes and regulations that include

disparate-impact liability, which he said "undermines our

national values" and runs contrary to equal protection under the

law.

It strikes me that charging different prices based on the

color of one's skin would also run contrary to equal protection,

but apparently that's no longer an allegation the FTC wants to

litigate.

Asbury in court papers vigorously denied the FTC's claims, which

include still-pending allegations that the dealerships hit

customers of all races with hidden fees for unwanted add-ons,

calling the accusations "scurrilous and false."

Asbury also said in the filing that the FTC refused to provide

details about customers, vehicles or transactions to support the

(now-abandoned) race discrimination claims. The company, which

owns 152 dealerships across 14 states, said its own review of

sales data did not show the alleged racial disparity.

The FTC's investigation of Asbury began in 2022, according to

disclosures filed by the company with the U.S. Securities and

Exchange Commission and brought the enforcement action in August

2024.

"The FTC unanimously charged Asbury with overcharging Black and

Latino consumers," Samuel Levine, the former director of the

FTC's Bureau of Consumer Protection who is now a senior fellow

at the Berkeley Center for Consumer Law and Economic Justice,

said via email. All five then-commissioners voted in favor of

the action.

Reversing course "sends a dangerous message that companies can

discriminate with impunity," Levine told me.

Now-FTC chairman Andrew Ferguson issued a concurring statement

at the time to explain why he supported the complaint. Ferguson

said he had "some reservations" about whether the Equal Credit

Opportunity Act satisfies the statutory requirements for

disparate-impact liability in instances where discrimination may

be unintentional. But he also noted that the FTC and courts have

previously interpreted the credit law as doing so.

The three Democratic commissioners went further, writing that

"Every district and appellate court to face the issue-and there

have been many-has accepted that disparate impact is a

cognizable basis" for liability.

The case law hasn't changed. What's different is who

occupies the White House.

Still, Amalea Smirniotopoulos, senior policy counsel and

co-manager of Legal Defense Fund's equal protection initiative,

said companies shouldn't take the FTC's retreat as a free pass

to discriminate. The Trump administration, she said via email,

"cannot change federal civil rights laws or the duty they impose

not to discriminate."