BLOG OVERVIEW: Illinois has codified disparate impact liability into the Illinois Human Rights Act. SB 3777, the Civil Rights Safeguard Act (Public Act 104-0744), was signed July 31, 2026 and takes effect June 1, 2027, making discrimination unlawful whether by purpose or effect. New Section 2-103.5 bars employers from using criteria or methods that discriminate, subject to a job-related and business necessity defense. Illinois reaches further than Title VII on covered bases but adopts no validation standard, unlike California and New Jersey, leaving multistate employers with three different evidentiary expectations.
Illinois Governor JB Pritzker signed SB 3777, the Civil Rights Safeguard Act (Public Act 104-0744), into law on July 31, 2026. This law updates the existing Illinois Human Rights Act (IHRA) to officially codify disparate impact liability into Illinois law, effective June 1, 2027, making discrimination unlawful “whether by purpose or effect.” That change includes every protected basis under the IHRA: race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, reproductive health decisions, and unfavorable discharge from military service.
The Act adds a definition of “criteria or methods”—practices, policies, or groups of practices or policies that may have a discriminatory effect—and creates new civil rights violations for using such criteria in employment, lending, credit cards, and public accommodations. Section 2-103.5 prohibits employers, employment agencies, and labor organizations from using such criteria or methods (e.g., hiring, promotions, or terminations) that result in discrimination against applicants or employees. An employer can defend a challenged practice or criterion by demonstrating that it is job-related for the position and consistent with business necessity. A complainant can prevail by identifying a less discriminatory alternative that would serve the same business necessity.
The Trump administration has signaled that deprioritizing disparate impact enforcement is a goal, and has taken a number of actions to achieve this at a federal level. These actions include Executive Order 14281, a Department of Justice (DOJ) Office of Legal Counsel (OLC) opinion concluding that the Equal Employment Opportunity Commission’s (EEOC) longstanding disparate impact guidelines are unconstitutional, DOJ’s rollback of Title VI disparate impact regulations, and EEOC’s National Enforcement Plan.
With federal enforcement receding, Illinois joins California, New York, and New Jersey, all of which codified disparate impact protections between late 2025 and early 2026. Colorado, Massachusetts, and Minnesota already recognize the theory under existing statute or case law.
It is worth remembering that disparate impact remains a viable theory under Title VII regardless of the administration’s enforcement posture. The OLC opinion is controlling only within the executive branch. EEOC, which requested it, has already aligned its enforcement accordingly, but it is not a judicial ruling or a legislative change, and it does not overturn Griggs v. Duke Power Co. or repeal the 1991 codification. Private plaintiffs are not bound by agency priorities, and state agencies and plaintiffs’ counsel are increasingly positioned to bring these claims.
States like Illinois previously relied on federal definitions, with disparate impact defined by Title VII of the Civil Rights Act (Title VII), Griggs v. Duke Power Co., and the 1991 Civil Rights Act, and state law tracked that framework. SB 3777 breaks that dependence, defining “criteria or methods” and the burden-shifting standard directly in state statute so that Illinois no longer depends on those federal sources to define state-level claims.
SB 3777 also goes further than Title VII on covered bases, reaching arrest record, conviction record, citizenship status, work authorization status, and family responsibilities. Employers operating across multiple states should expect a growing compliance patchwork as other states write their own versions. California and New Jersey both incorporated the Uniform Guidelines on Employee Selection Procedures (UGESP) into their state frameworks – California by statute and New Jersey through implementing rules that require job-relatedness backed by empirical validation evidence rather than assumption. However, Illinois did not. SB 3777 adopts the burden-shifting language without a validation standard. An employer running the same selection procedure in all three states now faces three different evidentiary expectations.
A federal pullback on enforcement priorities is not an opening to scale back organizational non-discrimination efforts. The compliance landscape has grown more complicated, not less. Organizations should routinely evaluate their compliance needs and stay up to date with federal, state, and local requirements.
DCI is tracking these state-level developments closely and can help your organization map where they have obligations as this patchwork grows.