Mercer Times

Attorney General Matthew J. Platkin and the Division on Civil Rights (DCR) announced today that DCR has proposed a new rule to clarify prohibitions against disparate impact discrimination under the New Jersey Law Against Discrimination (LAD). The proposed rule, which largely codifies existing state and federal case law, provides examples of policies and practices that may result in a disparate impact on members of a protected class under the LAD.

The LAD prohibits conduct that expressly treats people differently based on their membership in a protected class and policies or practices that negatively affect members of a protected class. For example, an employer’s policy prohibiting employees from wearing hats or head coverings at work may have a disparate impact based on religion because it would negatively affect those who wear yarmulkes, hijabs, turbans, or other religious garb or articles of faith. Such a policy may violate the LAD even if there is no intent to discriminate and even if the policy does not single out any particular religion for different treatment.

This form of discrimination is known as disparate impact discrimination. Under the LAD, neutral policies or practices—those that do not single out a protected class for different treatment—may still violate the LAD if they have a disparate impact on members of a protected class.

If adopted, the proposed rule would clarify the legal standard for disparate impact discrimination and outline burdens of proof in such claims across various contexts including employment, housing, public accommodations, financial lending, and contracting.

“It’s important to understand that a policy or practice doesn’t need malicious intent to have a harmful impact,” said Attorney General Platkin. “We no longer live in a time where ‘I meant well’ or ‘I didn’t think’ are accepted excuses for denying equal opportunity to anyone. This rule will help make New Jersey a more equitable and welcoming state for all of our residents.”

“Our state’s landmark civil rights law doesn’t just prohibit conduct that intentionally discriminates or singles out a particular group for different treatment. It also prohibits facially neutral policies or practices that result in an unlawful disparate impact based on a person’s membership in a protected class,” said Sundeep Iyer, Director of the Division on Civil Rights. “The proposed rule announced today will give members of the public and regulated entities much greater clarity on how disparate impact liability works and the limits it imposes. If adopted, it will be among the most comprehensive in the nation and will provide critical protections for the civil rights of all New Jerseyans.”

The proposed rule covers how disparate impact liability may apply to various examples of policies and practices in employment, housing, places of public accommodation, financial lending, and contracting. This includes employer policies regarding prior criminal history consideration; automated employment decision tools; language restrictions; citizenship requirements; dress codes; housing provider credit history considerations; minimum income requirements; standards maintained by places of public accommodation regarding religious garb; and educational institution disciplinary policies.

The proposed rule was published today in the New Jersey Register. A copy is available online. The rule is subject to a notice-and-comment period open until August 2, 2024. Comments can be submitted electronically via designated channels.

DCR is responsible for preventing and eliminating discrimination and bias-based harassment in employment, housing, and places open to the public by enforcing laws such as LAD, Fair Chance in Housing Act (FCHA), and New Jersey Family Leave Act (NJFLA).

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