Attorneys general representing 14 states have released joint guidance on anti-discrimination protections in which they defend disparate impact liability and clarify their interpretation of existing civil rights law. In this compliance alert, Affirmity’s Christine Avila examines the guidance and what it means for your organization.
Summary
On September 17, a coalition of 14 state attorneys general issued joint guidance on antidiscrimination protections, clarifying their stance on Federal and State-level implementation of civil rights laws. The coalition involved the AGs of California, Delaware, Hawaiʻi, Illinois, Massachusetts, Maryland, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington.
Arguing that the Trump Administration “has sought to narrow or even eliminate these protections through executive actions and misinformation,” the document makes the following key statements:
- “Our civil rights laws protect against practices that have the intent or effect of discrimination.”
- “Disparate impact liability is a longstanding, constitutional tool intended to ensure fairness and equal opportunity for everyone living in this country.”
- “The future of our civil rights laws is at stake.”
- “Civil rights enforcement is foundational to a healthy democracy.”
- “Efforts to enforce civil rights protections are legal and effective.”
The AGs state that “this document sets out 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.”
Accordingly, the document discusses how civil rights laws have provided protections against intentional discrimination and disparate impact, making reference to Griggs v. Duke Power Co. and the lengthy history of successful cases brought under the disparate impact theory of liability in federal courts. It then cites evidence demonstrating how disparate impact liability enforcement increases opportunities along race, sex, and/or age lines. Finally, the document makes a series of recommendations for policies and practices that organizations can adopt “to proactively further the goals of our civil rights laws.”
Who Is Impacted and What Actions Are Required?
The guidance is a reminder of the increasing plurality of non-discrimination risk—while organizations must pay heed to federal policy and priorities, individual states are determined to maintain laws and practices more in line with those that existed for the six decades prior to January 2025.
Organizations doing business in any of the 14 states named in the guidance must be sure of what local laws require. This is especially true of any facially neutral practices that may exclude a protected group (i.e., disparate impact), considering that the AGs in these states remain committed to investigating on this basis.
A high level of vigilance and state-specific research is required wherever you operate—there are likely states not named in the guidance that agree with some or all of its content. Furthermore, complying with civil rights law still requires the use of tools such as data collection, training, and public engagement, as well as models such as disparate impact. This is the reality of full compliance, regardless of whether the federal agencies mandate them or not.
How Affirmity Can Help
With federal agencies easing off on non-discrimination measures that states then pledge to continue enforcing, organizations need the software and services necessary to drive consistent, equitable, and legally defensible employment practices. We offer:
- Workforce representation and decision analytics: Maintain proactive race and gender non-discrimination analysis and uncover potential disparate impact
- Pay equity analysis: Identify unexplained compensation gaps across gender, race, and other protected classes before they result in legal exposure
- Risk assessment services covering federal and state targets such as DEI programs and AI use in employee selection
Protect your organization from shifting state and federal priorities: Contact our team of experts today. Find our alerts useful? Sign up here to stay informed!
About the Author
Christine Avila, Manager, Consulting Services, has been with Affirmity since 2010. She manages a team of consultants and advises clients in a variety of industries on federal contractor compliance and non-discrimination employment practices.
Prior to joining Affirmity, Ms. Avila had seven years of compliance experience as well as four years of recruiting experience for companies in the media and finance industries. Ms. Avila has served on the North Texas Industry Liaison Group (NTILG) Board since 2011.