Disparate Impact

Disparate impact is a specific course of action. It is used to prove that discrimination has occurred due to an employment policy or practice.

The act of disparate impact results in unintentional discrimination. Disparate impact concerns the procedures and policies regarding employment, education, housing, and other issues that aren't associated with discrimination. Even though these issues aren't necessarily discriminatory, situations arise that have "adverse effects" directed at a specific class. The discrimination may be based on religion, race, or color, for example. An employee's weight, height, education, interviews, and written tests can also be considered to have a disparate impact.

What Is the Difference Between Disparate Impact and Disparate Treatment?

Disparate impact results in an employee being subjected to unintentional discrimination. An employee subjected to disparate treatment is being discriminated against intentionally.

For an employee to claim disparate treatment, he or she must show they were treated differently based on their protected traits. These include gender, age, religion, gender, sexual preference, and race.

An example of disparate treatment would be along the lines of a well-qualified black employee with experience, skills, and positive reviews by his supervisor or manager who is repeatedly passed over when a promotion to a higher-level position within the company is available. Instead, the promotion is given to a white employee who has fewer skills and fewer qualifications.

A disparate impact claim is based on the actual procedures and policies of a company that has resulted in unintentional discrimination. A disparate treatment claim is most often based on a complaint lodged by an individual.

What Takes Place When Filing a Disparate Impact Claim?

For an employee to make a disparate impact claim, evidence must be presented by the employee that the neutral policy, practice, or rule, of an employer, has resulted in a negative impact on persons of a protected class.

Objective and/or subjective criteria must be presented to prove a disparate impact claim. This may include the following:

  • Degree requirements
  • Tests
  • Physical requirements, such as lifting, standing, and stamina
  • Job performance
  • Interview impressions

Once the subjective and objective data has been submitted by the employee, the employer may then take steps to defend itself. The tactic may be to challenge the evidence provided by the employee. This may include the validity of the statistics used to demonstrate that disparate impact has occurred.

The employer may also choose a defense that is designed to prove the company policy or the rule in question is, in fact, job-related and a necessity for consistent business.

Should the employer prove the validity of the business necessity, the employee can still win the case by proving an alternative practice and one with a less negative discriminatory effect is available but the employer refuses to put it into practice.

In the event the employer can prove that the claim being challenged is actually job-related, it is then up to the plaintiff to show that there are other options available that do not have a similar discriminatory effect and would support the employer's concern about maintaining an efficient work process.

Proof of an employer having a discriminatory motive is not a requirement to file a disparate impact claim.

Are Disparate Impact Claims Limited to Public Employees?

The answer is no. Disparate impact claims can be filed by employees working for public or private employers. For example, a 2006 case implicated the practices of a private employer involving pre-employment strength tests. These tests were discriminatory and resulted in a disparate impact on women.

Pre-employment criminal background checks by private employers are also increasing in disparate impact claims.

There are a few reasons why a potential employee might be disqualified due to a criminal background check. An employer might want to assess these reasons, which could include, but are not limited to, the circumstances of their prior conviction, whether there has been any rehabilitation, and their character references.

A recommendation from the Equal Employment Opportunity Commission (EEOC) suggests employers perform an assessment for any applicant who is disqualified for employment based on information received in a background check to make sure the person has not been discriminated against based on any of the protected categories.

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