Multi-State Disparate Impact Update

/in

Multistate Coalition Reaffirms Disparate Impact Enforcement 

APPLIES TO

All Employers with Employees in CA, DE, HI, IL, MA, MD, MI, MN, NM, NV, NY, OR, VT, and WA

EFFECTIVE

SEP 17, 2026

QUESTIONS?

Contact HR On-Call

(888) 378-2456

 

Quick Look

  • The attorneys general of fourteen states issued joint guidance reaffirming that disparate impact liability remains enforceable under both state and federal law.
  • The guidance responds to a shift in federal enforcement priorities and reminds employers that private plaintiffs may still bring disparate impact claims under Title VII regardless of federal enforcement direction.

Discussion

On September 17, 2026, the attorneys general (AG) of California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington issued joint guidance reaffirming their commitment to enforcing disparate impact protections under both state and federal civil rights laws. While the guidance does not create new legal obligations, it does provide a direct response to the federal government’s recent efforts to curtail disparate impact enforcement and makes clear that these states intend to fill that gap.

 

By way of background, civil rights laws, including Title VII of the Civil Rights Act of 1964 (Title VII), recognize two forms of unlawful employment discrimination. Intentional discrimination (or disparate treatment) occurs when an employer treats employees or applicants differently because of a protected characteristic. Disparate impact occurs when a facially neutral policy or practice has an unjustified discriminatory effect on a protected group, even absent discriminatory intent. The disparate impact theory traces back to the U.S. Supreme Court’s 1971 decision in Griggs v. Duke Power Co., in which the Court held that employment practices that exclude a protected group are unlawful if the employer cannot show they are job-related. That framework was statutorily incorporated into Title VII and has not been repealed.

 

The AGs make clear in their guidance that neither the President nor federal agencies can rewrite laws that Congress has passed or change protections established by the Constitution or existing federal and state laws. While acknowledging that recent U.S. Supreme Court decisions have narrowed certain enforcement mechanisms, the guidance reiterates that those decisions have not disturbed the legality of disparate impact liability itself. State civil rights laws in these fourteen states independently prohibit disparate impact discrimination, and the AGs state their intent to enforce those laws vigorously.

 

Beyond affirming enforcement, the guidance advocates for proactive steps to identify and eliminate unjustified barriers to opportunity. In the employment context specifically, the AGs highlight several recommended practices: (1) standardizing criteria for recruitment, hiring, advancement, and termination based on skills and experience relevant to the job; (2) ensuring equal access to professional development, training, and mentorship programs; and (3) creating clear procedures for employees to report discrimination or harassment. The guidance also flags AI and algorithmic employment tools as an area of active enforcement focus, noting that embedded biases in these systems can produce disparate effects based on race, sex, age, or other protected characteristics.

 

Employers should also keep in mind that federal deemphasis of disparate impact enforcement does not restrict private plaintiffs. Employees and applicants may still bring disparate impact claims under Title VII, and those claims are evaluated by courts (not federal agencies) applying the same longstanding legal standards.

 

Action Items

  1. Evaluate any AI or algorithmic tools used in employment decisions for compliance with applicable anti-discrimination laws.
  2. Establish or review procedures for employees to report discrimination concerns.
  3. Consult with legal counsel on disparate impact compliance obligations under applicable federal, state, and local laws.
  4. Have appropriate personnel trained on anti-discrimination requirements.

 

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2026 ManagEase