June 17, 2024

New Jersey has considered new rules that define how the law will treat unintentional discrimination as discrimination. These rules specifically adjust New Jersey’s Law Against Discrimination. Regardless of intention, the accused must prove they did not discriminate.

These new rules intend to show that New Jersey’s Law Against Discrimination “prohibits practices or policies that result in a disproportionately negative effect on members of a protected class, even if these and are not intended to discriminate, unless it is shown that such practices or policies are necessary to achieve a substantial, legitimate, nondiscriminatory interest and there is no less discriminatory, equally effective alternative that would achieve the same interest.”

The Law Against Discrimination

According to the Law Against Discrimination, unintentional discrimination can take many forms. One example includes prohibiting head coverings or hats, which could affect those who wear a head covering as part of their religion. Another example concerns accessing housing complexes via electricity. This example applies to those who observe Shabbat.

Attorney General Matthew Platkin explained that “meaning well” and “not thinking” would no longer excuse anyone from not providing equal opportunities. He also assured the public that the new rules would make New Jersey more welcoming and equitable for its residents. Finally, he assured that the public will have an opportunity to comment on the proposal’s seventy-one pages.

New Jersey’s Law Against Discrimination protects people from discrimination due to specific religious practices. The new rules would also address another form of discrimination: exclusion from jobs or housing due to criminal history. This change addresses the disparate impact of such discrimination on people of color. However, the rules included exceptions for federal or state laws requiring background checks to see these records.

What the Changes Will Do

This new proposal will “provide 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 arising in specific contexts.” As such, it would help the public to understand how the disparate impact claims process works. The rules also provide the legal standards for proving a disparate impact discrimination claim in various situations. Examples of such claims include housing, employment, contracting, and more.

The proposed guidelines address how employers and landlords use automated decision tools, background checks, and minimum income requirements for housing. The new rules also address discrimination in other practices. Implementing these rules may require employers to update their hiring policies to ensure compliance.

Information provided here is for educational and informational purposes only and should not constitute as legal advice. We recommend you contact your own legal counsel for any questions regarding your specific practices and compliance with applicable laws.