State Attorneys General Pledge to Enforce Disparate-Impact Protections

A coalition of 14 state attorneys general is warning employers and other organizations that antidiscrimination protections remain enforceable in their states, despite the White House’s efforts to curtail disparate-impact liability at the federal level.

The attorneys general of California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington issued joint guidance on Sept. 17 affirming their commitment to enforcing state and federal civil-rights laws. 

“Our civil rights laws protect against practices that have the intent or effect of discrimination,” the guidance states, distinguishing intentional discrimination from unjustified disparate impacts caused by facially neutral policies. 

The move highlights an increasingly fragmented compliance landscape for employers, particularly those operating across multiple states.

Federal Government Retreats from Disparate Impact

Disparate-impact liability generally allows challenges to neutral policies that disproportionately harm members of a protected group without requiring proof that an organization intended to discriminate.

President Donald Trump targeted that framework in an April 2025 executive order directing federal agencies to deprioritize disparate-impact enforcement and review existing regulations and litigation relying on the theory.

The administration has since taken additional steps to limit its use. In June, the Department of Justice (DOJ) concluded that the EEOC’s interpretation of disparate-impact liability under Title VII raised constitutional concerns. DOJ said employers should be able to use practices related to job performance — including aptitude tests, knowledge tests, and criminal background checks — without violating Title VII merely because they produce different demographic outcomes. 

Other agencies have made similar moves outside employment. The Consumer Financial Protection Bureau, for example, finalized a rule this year removing the disparate-impact “effects test” from Regulation B after concluding that the Equal Credit Opportunity Act does not authorize such liability.

But the state attorneys general contend those federal actions do not eliminate disparate-impact protections established by statute or state law.

“Recent Supreme Court decisions have narrowed what enforcement mechanisms agencies and private citizens may use to redress disparate impacts, but those decisions do not disturb the legality of disparate impact liability itself,” the guidance states. 

HR Q&A: Understanding Disparate Impact vs. Disparate Treatment in Hiring 

What It Means for HR

For employers, the guidance is another reminder that federal enforcement policy may no longer provide a complete picture of discrimination risk.

State laws can independently prohibit practices producing unjustified discriminatory effects, and the participating attorneys general said they intend to continue enforcing those protections. Several states have also moved to codify disparate-impact standards as the federal government has pulled back. 

The guidance follows a similar multistate effort from February 2025, when a coalition of attorneys general told employers that lawful inclusion and diversity (I&D) and accessibility initiatives remained permissible despite the administration’s campaign against what it calls “illegal DEI.” 

For HR teams, that means employment practices that appear neutral may still warrant scrutiny. Hiring assessments, screening criteria, promotion requirements, and other workforce policies that disproportionately exclude protected groups could create legal exposure depending on the jurisdiction and applicable law.

Multistate employers, in particular, may need to track state requirements separately rather than assuming that changes in federal enforcement have established a single nationwide standard.