Filling the Gaps: How Some States Advance Civil Rights Enforcement Efforts

Over the past year, there have been many changes to non-discrimination enforcement efforts by the Federal government. From the revocation of Executive Order 11246 to the EEOC’s decision to de-emphasize disparate impact claims, the enforcement priorities of the current administration are currently in a state of change from what federal contractors, private industry employers, and the higher-ed community has been accustomed to in past administrations. As federal EEO enforcement priorities continue to shift, as we predicted, states are stepping in to fill some of those gaps.

Recently, the state of New York amended its State Human Rights Law to clarify that disparate impact liability is covered. This amendment codified that a facially neutral employment practice may still violate the New York State Human Rights Law based on discriminatory effects, even if the employment practice does not have discriminatory intent. In other words, when an employee has shown that an employment practice will “actually or predictably” cause disparate impact on a protected class, it is up to the employer to then prove that the employment practice in question is job-related and consistent with the needs of the business for the position in question.

Under this statute, the employer’s justification must be based on evidence and not hypothetical or speculative reasoning. Employers in the state of New York will want to ensure they are consistently evaluating their employment practices (especially those practices where Artificial Intelligence is used to aid in selection decisions) and have the documentation to defend these practices in the event of a discrimination claim based on the disparate impact theories.

The State of New Jersey has also codified new regulations that prohibit disparate impact discrimination under the New Jersey Law Against Discrimination (LAD). Using the same disparate impact theories of the federal government, the state of New Jersey will address disparate impact discrimination in employment, housing, places of public accommodation, financial lending, and contracting based on the characteristics protected under state law (which are broader than those under federal law). The new rules clarify the legal standard and burdens of proof for disparate impact liability under the LAD, covering both practices or policies that “actually or predictably result[] in a disproportionality negative effect.”. To defend a claim, employers must show that the challenged practice or policy is “necessary to achieve a substantial, legitimate, nondiscriminatory interest.”

The New Jersey regulations include several sections on the types of policies and practices that may cause a disparate impact. Employers should take a moment to review these sections carefully. Of note, the pre-employment section specifically notes that “affirmative efforts to utilize recruitment practices” to attract underrepresented classes are not precluded. The regulations also explain how Artificial Intelligence (AI) and other automated decision-making tools could cause disparate impact liability. More information on the new ruling for NJ is available online. can be found here: The state has also provided a fact sheet on disparate impact discrimination.

While New York and New Jersey are the most recent states to act, employers can expect more states to begin reacting to ongoing EEO enforcement changes at the federal level. Employers may need to prepare to comply with a patchwork of state laws and requirements, much like they do for pay transparency and leave requirements. Berkshire will continue to monitor the states and will post updates as they are received.