Fourteen States Issue Joint Guidance Highlighting Disparate Impact Enforcement

Fourteen state attorneys general recently released a guidance document reaffirming a fundamental principle of civil rights law: discrimination can occur not only through intentional bias, but also through seemingly neutral policies and practices that disproportionately disadvantage protected groups. This latter concept, known as disparate impact, recognizes that a policy or practice that disproportionately harms a protected group may be unlawful if it is not job-related and consistent with business necessity.

The states’ guidance comes amid a broader shift in federal policy away from enforcing disparate-impact protections, raising important questions about how civil rights laws will be interpreted and enforced—and what role states may play in preserving these protections.

The coalition of states signing onto the guidance document include Massachusetts, Maryland, New York, California, Delaware, Hawaii, Illinois, Michigan, Minnesota, Nevada, New Mexico, Oregon, Vermont, and Washington.

An executive summary at the beginning of the nine-page document states that disparate impact liability is a constitutional tool, and disparate impact protections have helped to address hidden or unintended biases and barriers to opportunity throughout history. The Attorneys General go on to write that the purpose of the document is “to clarify the state of the law; ensure that our residents understand the protections to which they are entitled; and reaffirm our commitment to defend and enforce civil rights laws.” They write that federal agencies and the President do not have authority to rewrite laws Congress has passed, or change protections established by the Constitution or federal or state laws.

While the Attorneys General reiterate that the anti-discrimination laws that prohibit disparate impact discrimination remain and will be enforced, the document advocates for public and private entities to take proactive measures to eliminate discrimination in all its forms. They provide examples of proactive measures that can be taken across industries, including recommendations specific to the employment space. These include

• ensuring that criteria for hiring, advancement, and termination are standardized and focused on skills and experience,
• ensuring equal access to any programs or opportunities designed to enhance career growth and opportunities, and
• creating clear procedures for reporting discrimination and harassment.

The states’ united position should serve as a reminder to employers in these states that while the federal government is deemphasizing disparate impact liability, these states intend to enforce all anti-discrimination laws within their authority. Employers should also keep in mind that none of the federal actions constrain private plaintiffs from bringing disparate impact claims under Title VII. Consistent and robust analyses of workforce data is recommended for employers to monitor their level of risk and address policies or practices that may be causing a disparate impact.