State Attorneys General Provide Reminder on Enforcement of Disparate Impact Claims

In May 2025, Frantz Ward’s Labor & Employment Practice Group reported on President Trump’s April 23, 2025, Executive Order that instructed federal agencies to deprioritize the investigation of disparate impact claims, and in October 2025, the L&E practice group reported that the EEOC stated it would cease investigation of any claims of disparate impact that were contained in charges filed with the Commission. While the EEOC ceased investigation of disparate impact claims, individuals continued to be able to bring such claims under federal law once they had received a right-to-sue letter from the EEOC. Additionally, individuals remained able to bring, and state civil rights agencies were able to investigate and pursue, claims of disparate impact if disparate impact claims were allowed under applicable state law.

On September 17, 2026, the Attorneys General of 14 states (California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington) issued joint guidance in which they reaffirmed that their states continue to recognize and will enforce violations of discrimination laws that are based on the disparate impact theory. The Attorneys General stated the “federal government is working to undermine bedrock American values…[and the] President and federal agencies cannot rewrite laws passed by Congress…”

It is important to note that states other than the 14 that joined in the above guidance, such as Colorado, Ohio, and New Jersey, also recognize the disparate impact theory under their civil rights or anti-discrimination laws.

As a refresher, disparate impact claims address “actions that, on their face, seem neutral, [but] may have a disparate impact on certain groups by causing unjustified and unfair harm, or unduly excluding groups of people based on certain protected characteristics.” Accordingly, the Attorneys General issued the guidance to help ensure that “everyone has a fair shot to thrive in our society, including in applying for a job…” Id.

Although this recent guidance does not change the landscape regarding disparate impact claims that existed prior to its issuance, it serves as a reminder that while the federal government may be deemphasizing disparate impact claims and no longer investigating them, individuals can bring such claims not only under federal law but also under the laws of various states. It is thus important for employers to know the law of their state and to continue to assess any policies and practices that appear neutral on their face but which in practice may disproportionately affect individuals in groups or which are based on characteristics that historically have been protected under federal or state law.

If you have questions about the above-referenced guidance, disparate impact, or a general labor or employment question, feel free to contact Joel R. Hlavaty or any member of Frantz Ward’s Labor & Employment Practice Group.