BLOG OVERVIEW: On September 17, 2026, attorneys general from 14 states issued joint guidance affirming that their civil rights laws prohibit both intentional discrimination (disparate treatment) and unintentional discrimination from facially neutral practices (disparate impact). The guidance calls disparate impact liability a longstanding, constitutional tool, traces it to Griggs v. Duke Power Co. (1971), and recommends employment best practices such as standardized, job-relevant qualifications and transparent hiring, advancement, and termination policies. Employers operating in these states should review their selection procedures for adverse impact even as federal enforcement narrows.
On September 17, 2026, several state attorneys general (AGs) released a joint guidance document affirming their respective states’ commitment to antidiscrimination protections under established civil rights laws. The AGs represent the states of Massachusetts, Maryland, New York, California, Delaware, Hawai’i, Illinois, Michigan, Minnesota, Nevada, New Mexico, Oregon, Vermont, and Washington.
Importantly, the AGs emphasize that the civil rights laws in their jurisdictions protect not only against intentional discrimination (also known as “disparate treatment”), but also unintentional discrimination arising from facially neutral practices (“disparate impact”).
Disparate impact liability has faced heightened scrutiny during the second Trump administration, resulting in the narrowing of some enforcement mechanisms at the federal level. However, the underlying legal theory remains intact, and the AGs confirm their states’ commitment to preventing and remedying such unintentional discrimination. The guidance states:
“Disparate impact liability is a longstanding, constitutional tool intended to ensure fairness and equal opportunity for everyone living in this country.”
The guidance goes on to provide context and background information regarding disparate impact, including the 1971 case that set the precedent for such claims, Griggs v. Duke Power Co. The AGs provide several examples of disparate impact cases that have succeeded in the decades since and highlight the fact that the cases span a wide variety of industries and contexts, including education, public safety, credit lending, transit, and housing.
A list of best practices that organizations and municipalities can implement proactively to remedy potential areas of disparate impact is also provided. In the employment context, employers are reminded to:
Establish clear, transparent policies for recruitment, hiring, retention, advancement, and termination, with leadership buy-in across analysis, planning, implementation, and evaluation.
Ensure qualifications (e.g., knowledge, skills, experience) used to recruit, hire, retain, advance, and terminate employees are standardized and job-relevant.
Provide equal access to professional development, training, and mentorship, with clear pathways for career growth.
Create clear protocols for reporting discrimination or harassment, along with feedback channels for employees to share their workplace experiences.
The release of this guidance by the AGs follows a pattern that has emerged during the current administration: As nondiscrimination protections continue to be rolled back at the federal level, states and local jurisdictions are doubling down on their commitment to ensuring equal employment opportunity within their borders. Although the guidance document provides high-level guidelines rather than listing specific requirements, it is important that employers with a presence in these states are aware of their nondiscrimination obligations.
DCI will continue to monitor developments in this area. Subscribe to receive DCI Alerts to get industry news straight to your inbox.