14 States Reaffirm Robust Enforcement of Disparate Impact Laws

Fourteen states issued joint guidance reaffirming that disparate impact enforcement remains active.

On September 17, 2026, the attorneys general from fourteen U.S. states released joint guidance emphasizing that disparate impact liability under both state and federal law remains enforceable. This response directly counters recent federal efforts to curtail such enforcement, which have raised concerns within the employment law community.

The fourteen states involved—California, Delaware, Hawaii, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Vermont, and Washington—reaffirmed that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on both discriminatory intent and disparate impact. As the guidance states, "Our civil rights laws protect against practices that have the intent or effect of discrimination."

Meanwhile, the federal government has taken steps to limit disparate impact enforcement. Executive Order 14281, signed in April 2025, directed federal agencies to cease applying disparate impact liability theories in civil rights enforcement and to repeal related rules where feasible. Furthermore, the Department of Justice's Office of Legal Counsel issued a memorandum on June 9, 2026, which concluded that the Equal Employment Opportunity Commission's (EEOC) disparate impact guidelines conflict with Title VII and are constitutionally questionable. According to the DOJ opinion, "disparate-impact liability tends to incent—and even coerce—employers to make race-based decisions to avoid liability or the threat of liability." Additionally, the Consumer Financial Protection Bureau finalized rules in May 2026 stating that the Equal Credit Opportunity Act does not authorize disparate-impact liability.

This split between federal and state approaches creates a patchwork of enforcement, underscoring the importance for employers and legal advisors to remain vigilant about nondiscrimination compliance. While the federal stance trends toward limiting disparate impact enforcement, the active commitments by these fourteen states signal that such protections remain a significant legal risk in multiple jurisdictions.

Yes, but: The federal government continues to push for rolling back disparate impact enforcement, highlighting ongoing legal and regulatory tension between state and federal authorities.

What's next: Employers should monitor how these fourteen states implement enforcement actions and watch for potential legal challenges or clarifications from courts regarding disparate impact liability.