Governor J.B. Pritzker recently signed the Civil Rights Safeguard Act (CRSA) amending the Illinois Human Rights Act (IHRA) to codify the theory of disparate impact liability in employment disputes. The amendment takes effect June 1, 2027, and ensures that Illinois employers will remain subject to disparate impact liability.
Under the disparate impact theory of liability, facially neutral employment policies or practices may be found unlawful if they have a disproportionate, discriminatory impact on a protected group, even if there was no intent by the employer to discriminate. The theory has its origins in the 1971 case, Griggs v. Duke Power Company, in which the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 “proscribes not only overt discrimination, but also practices that are fair in form, but discriminatory in operation.” 401 U.S. 424, 431 (1971).
The CRSA prohibits employers, employment agencies and labor organizations from using “criteria or methods” that have the effect of discriminating against individuals based on a protected characteristic. The new law adopts a burden-shifting framework whereby liability arises after the employee makes an initial showing of discriminatory effect and either (i) the employer fails to show that the challenged criteria or methods are job-related and consistent with business necessity, or (ii) the employer shows that the challenged criteria or methods are job-related and consistent with business necessity, but the employee shows that a less discriminatory alternative exists. The amendment reflects the Illinois legislature’s intent to focus civil rights enforcement on the real-world effects of the decision-making processes, not solely on the decisionmaker’s alleged discriminatory intent.
The CRSA stands in contrast to efforts at the federal level to limit or eliminate the disparate impact theory of liability in employment. For example, on April 23, 2025, President Trump signed Executive Order 14281, “Restoring Equality of Opportunity and Meritocracy,” which instructed federal agencies to deprioritize the enforcement of disparate impact liability, and called on the U.S. Attorney General to repeal or amend the disparate impact regulations promulgated under Title VII. And, on June 4, 2026, the U.S. Equal Employment Opportunity Commission (EEOC) issued a new National Enforcement Plan for 2025–2029, announcing that the agency would eliminate the use of disparate impact liability to the maximum extent possible and prioritize disparate treatment enforcement instead. Days later, on June 9, 2026, the U.S. Department of Justice issued a memorandum opinion concluding that the EEOC’s long-standing disparate impact guidelines were unconstitutional.
For Illinois employers, the divergence between state and federal enforcement priorities will not excuse noncompliance with the newly amended IHRA. Employers should work with counsel to review their policies and practices to ensure alignment with the CRSA requirements.
For additional information, please contact Michelle Olson at molson@vedder.com, Ellie Hemminger at ehemminger@vedder.com, or any other Vedder attorney with whom you’ve worked.
