On June 3, 2024, the New Jersey Division on Civil Rights (DCR) proposed a new rule (“DCR Disparate Impact Rule” and/or the “Proposed Rule”) addressing disparate impact discrimination, N.J.A.C. 13:16. The Proposed Rule was published in the New Jersey Register and the public may provide comments until August 2, 2024. If the Proposed Rule is adopted, employers are urged to closely review their workplace rules and regulations as well as policies and practices to ascertain if they will have a disparate impact utilizing this new proposed framework. The Proposed Rule addresses head on the framework for assessing the NJ Law Against Discrimination (NJLAD) prohibition on practices or policies that result in a disproportionately negative effect on members of a protected class, even if these practices or policies are not intended to discriminate. The Proposed Rule provides the standard for determining whether a practice or policy is unlawfully discriminatory and the burden-shifting framework applied to the standard for disparate impact claims including in employment contexts. The Proposed Rule largely codifies existing State and Federal case law.
The Proposed Rule provides that a complainant challenging an employer’s practice or policy must show that the practice or policy has a disparate impact on members of a protected class using and relying on empirical evidence that is not hypothetical or speculative. Evidence may include national, state, and local statistical data; applicant, employee, or tenant or resident files or data; criminal justice system data and police and court records; demographic or census data; labor market data; correctional facility data and records; law enforcement records and data; and school disciplinary data, which may be relevant in disparate impact claims. If the complainant meets this burden, a prima facie case can be established. (N.J.A.C. 13:16-2.2 ).
In the employment context, if the complainant meets the burden of showing that the practice or policy results in a disparate impact on members of a protected class, the respondent has the burden of showing that the challenged practice or policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest. A “substantial interest” means a core interest of the entity that has a direct relationship to the function of that entity. A “legitimate interest” means that a justification for a challenged practice or policy is genuine, not false or pretextual; and “nondiscriminatory interest” means that a justification for a challenged practice or policy does not itself discriminate based on a protected characteristic.
A respondent must also show that the practice or policy effectively carries out the identified interest. A justification that is not supported by empirical evidence will not meet the burden. With respect to recruitment practices, an interest in achieving diversity or increasing access for underrepresented or underserved members of a protected class may constitute a substantial, legitimate, nondiscriminatory interest. (N.J.A.C. 13:16-2.2 ).
In the employment context, whether a practice or policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest means whether the practice or policy is job related and consistent with a legitimate business necessity. Pursuant to the Proposed Rule, a practice or policy is job related when it is appropriately tailored to bear a demonstrable relationship to successful performance of the job. The determination of whether a party has met these burdens requires a case-specific, fact-based inquiry. (N.J.A.C. 13:16-3.1).
In the employment context, if the respondent meets the burden of showing that the challenged practice or policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest, the complainant has the burden of showing that there is a less discriminatory, equally effective alternative means of achieving the substantial, legitimate, nondiscriminatory interest. This burden-shifting framework aligns with case law analyzing disparate impact liability pursuant to the NJLAD in the employment context. (N.J.A.C. 13:16-3.1).
The Proposed Rule highlights areas in which disparate impact cases may arise including:
- Advertising and recruitment efforts to ensure that all persons are given fair and adequate notice of job vacancies, membership opportunities, and employment referral opportunities. The Proposed Rule provides examples of pre-employment screening and interview practices and policies that may result in a disparate impact on members of a protected class including the use of automated employment decision tools to make employment decisions. (N.J.A.C. 13:16-3.2).
- Employment policies and/or practices that may disparately impact applicants or employees based on national origin or ancestry, including language restrictions in the workplace and citizenship requirements, with the exception of citizenship requirements that are required or expressly permitted by law or regulation. (N.J.A.C. 13:16-3.4).
- Employment requirements, such as height and/or weight requirements, which may result in disparate impact on applicants and employees on the basis of gender, national origin, ancestry, or disability, and health or physical ability requirements, which may disproportionately impact applicants and employees based on gender, age, or disability. (N.J.A.C. 13:16-3.4).
- Specific dress or appearance requirements may have a disparate impact on members of a protected class based on religion. For example, a prohibition on hats or head coverings may have a disparate impact based on religion for those who wear yarmulkes, hijabs, turbans, or other religious articles or articles of faith or maintain religiously mandated unshorn hair/beards. (N.J.A.C. 13:16-3.4).
- Dress requirements that do not allow employees to dress in a way that affirms their gender identity or allows them to express their gender identity may have a disparate impact based on gender identity and expression. (N.J.A.C. 13:16-3.4).
- Requirements to possess a driver’s license may have a disparate impact on applicants based on disability and national origin because many people with disabilities and those who are immigrants may not possess a driver’s license. (N.J.A.C. 13:16-3.4).
- Employment practices or policies may have the effect of discriminating against applicants or employees on the basis of pregnancy, breastfeeding, or chestfeeding. (N.J.A.C. 13:16-3.4).
- Employment practices or policies of excluding from consideration, an applicant based on criminal history information may have a disparate impact based on race (particularly for Black applicants), national origin (particularly for Latinx/e applicants), or ancestry. An employer, labor organization, or employment agency that eliminates applicants from consideration because of a criminal record has the burden to show that the practice or policy is necessary to achieve a substantial, legitimate, nondiscriminatory interest. Even then, the practice or policy is still unlawful if the complainant can show that there is a less discriminatory, equally effective alternative that would achieve the same interest. A practice or policy that contains an individualized assessment of the facts and circumstances of the applicant’s criminal record and other mitigating information is likely to be a less discriminatory alternative to a policy or practice that excludes individuals from employment or the application process based on criminal history information without conducting an individualized assessment. The Proposed Rule provides a list of factors that may be relevant to such an assessment such as the nature and severity of the offense and the facts and circumstances of the conduct underlying it; the specific duties and responsibilities of the position sought or held by the person; the bearing, if any, that the criminal offense has on the person’s fitness or ability to perform one or more such duties or responsibilities; the time that has passed since the criminal offense; the age of the individual at the time of the occurrence of the offense; whether an offer or continuation of employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public; and any evidence of rehabilitation that the applicant or others may choose to provide. (N.J.A.C. 13:16-3.4).
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission
This summary is for informational purposes only and is not intended to constitute legal advice. This information should not be reused without permission
