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Highlights
Impacted employers:New Jersey employers, labor organizations, employment agencies and other covered entities
Effective date:Effective immediately
Summary:New Jersey has adopted rules that codify existing law prohibiting disparate impact discrimination.
Next steps:Review the rules and fact sheet, and train human resources and supervisors on the law.
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The details
New Jersey has adopted rules that codify its nondiscrimination law prohibiting employers from disparate impact discrimination. The rules cover New Jersey employers, labor organizations, employment agencies and other entities, and are effective immediately.
Background
The New Jersey Law Against Discrimination (LAD) prohibits employers from discrimination on the basis of the factors such as race, creed, color, national origin, ancestry, age, sex, gender identity or expression, affectional or sexual orientation, marital status, liability for service in the Armed Forces of the United States, disability or nationality.
The LAD safeguards against not only intentional acts of discrimination but also practices and policies that disproportionately affect members of protected groups (disparate impact discrimination).
The Adopted Rules
The adopted rules reinforce that employment practices and policies may be unlawful if they have a disparate impact on members of a protected class. The rules prohibit these practices and policies unless they are necessary to achieve a substantial, legitimate, nondiscriminatory interest, which is equivalent to whether they are job-related and consistent with a legitimate business necessity.
Note: An employment practice or policy may still be prohibited if necessary to achieve a substantial, legitimate, nondiscriminatory interest if a complainant shows there is a less discriminatory alternative that would achieve the same interest.
The adopted rules provide examples of prohibited policies and practices. For example, the use of automated employment decision tools may have a disparate impact when:
- They are used to make employment decisions related to advertising, recruiting, screening, interviewing, hiring, and compensation, or any other terms, conditions, or privileges of employment and result in discrimination based on applicants’ or employees’ protected characteristics.
- The tool limits or screens out applicants based on their schedule as this may have a disparate impact on applicants based on their religion, disability, or medical condition. The tool must include a mechanism for applicants to request a reasonable accommodation.
- The employer’s use of the tool has not been adequately tested and shown to not adversely affect people in a protected class before its use.
See the adopted rules for more examples on how disparate impact discrimination can be found in employment.
Next steps
- Review the adopted rules and fact sheet.
- Update nondiscrimination policies and procedures and train supervisors on the law.