By Greg Abrams

“Must be able to lift 50 pounds.” “Seeking recent college graduates.” “Bonus based on perfect attendance.”

None of these job expectations intentionally intends to target or exclude individuals with certain protected characteristics. Nonetheless, Illinois recently made clear that even unintentional discrimination could be illegal.

On July 31, 2026, Governor Pritzker signed into law the “Civil Rights Safeguard Act” (Senate Bill (SB) 3777), which amends the Illinois Human Rights Act (IHRA) to expressly prohibit unlawful disparate impact discrimination, meaning discrimination based on policies and practices that appear neutral but have a disproportionate effect on certain individuals.

1. What is disparate impact discrimination?

Disparate impact discrimination means that an otherwise neutral policy or practice, including certain job criteria, while not intentionally discriminatory, has a disproportionate effect on members of a certain group. In 1971, the U.S. Supreme Court endorsed this concept in finding that certain hiring requirements applicable to all candidates could disproportionately exclude African American applicants and employees.

2. What is the new Illinois law?

The IHRA, the Illinois law protecting individuals from discrimination, now defines “unlawful discrimination” to encompass discrimination “whether by purpose or effect”—meaning both intentional and unintentional discrimination.

In particular, the IHRA expressly covers criteria or methods that have the effect of subjecting individuals to discrimination on the basis of:

• Protected characteristics (race, color, religion, national origin, ancestry, age, sex, marital status, order of protection status, disability, military status, sexual orientation, pregnancy, reproductive health decisions, or unfavorable discharge from military service)
• Citizenship status
• Family responsibilities
• Work authorization status
• Arrest or conviction record

This means that a job practice that does not intend to discriminate against an individual based on (for example) race or their status as citizen or non-citizen or whether the individual has a criminal record, nonetheless could be unlawful if it affects these groups more than those without these characteristics.

3. What types of employment practices are covered?

The new law is very broad. It covers any “criteria or methods,” which extend to any practices or policies (or groups of practices or policies). This would include, for example, hiring requirements, job rules and policies like disciplinary rules, and compensation criteria.

4. What defenses are available to employers?

To avoid liability if a policy or practice is deemed to have a discriminatory effect, an employer must show the policy or practice is “job related for the position in question” and “consistent with business necessity,” meaning it can be justified as a legitimate employment requirement.

However, liability may still attach if another employment practice that has a less discriminatory effect could serve this business necessity.

For example, a bachelor’s degree requirement for a particular position could disparately impact certain protected groups, but it may be justified as necessary for that specific job. However, an employer may still face liability if equivalent relevant experiences, job training, or certifications are equally sufficient for performing in the position.

5. Hasn’t disparate impact discrimination always been recognized? Why is Illinois enacting this law now?

Disparate impact discrimination has long been recognized as a viable theory under Title VII of the Civil Rights Act, the main federal law prohibiting discrimination. However, under the Trump Administration, federal agencies including the Equal Employment Opportunity Commission have backed away from pursuing disparate impact claims.

According to the Illinois Department of Human Rights, disparate impact theory has been a “cornerstone of civil rights law,” and the Civil Rights Safeguard Act will “uphold integral and enforceable civil rights protections.”

In other words, with the federal government less receptive to this concept, Illinois has stepped in to provide an explicit, statutory basis for plaintiffs to advance disparate impact discrimination claims.

6. When will this new law go into effect?

January 1, 2027.

7. What steps should an employer consider taking now?

Employers should consider reviewing policies and practices that may disproportionately affect protected groups. These include in the areas of:

Topic	Examples
Recruiting and Hiring	Minimum job qualifications and screening criteria
Performance Management	Job productivity standards and disciplinary rules
Layoffs and Termination	Reduction-in-force methodologies
Compensation	Pay-setting criteria and promotion-related compensatory practices
Use of Artificial Intelligence	Applicant screening and job assessments

 

Employers should identify potentially problematic practices and ensure they can establish legitimate business justifications for any that may result in a disparate impact.

As part of that evaluation, employers also should consider involving internal or external counsel to protect attorney–client privilege.

This Client Alert has been prepared by Tucker Ellis LLP for the use of our clients. Although prepared by professionals, it should not be used as a substitute for legal counseling in specific situations. Readers should not act upon the information contained herein without professional guidance.