Disparate Impact: Company Policies That Discriminate Even if Not Intended To Do So

Disparate impact is a legal theory that comes into play when you file a lawsuit against your employer alleging that its policies or procedures discriminated against you. The dictionary defines the word “disparate” as “1) essentially different in kind, 2) markedly distinct in quality or character or 3) containing or made up of fundamentally different and often incongruous elements”. Synonyms include the following:

• Different
• Dissimilar
• Distinct
• Distinctive
• Distinguishable
• Nonidentical
• Other
• Unalike
• Unlike

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on a person’s race, religion, color, national origin, ethnicity, gender, gender identity, sexual orientation, age, military status, disability or genetic information. To prove disparate impact, you must show that a policy or procedure of your employer, while appearing neutral on its face, actually discriminates against one of these protected groups of which you are a member.

Unlike a disparate treatment case in which you must show that your employer, by the use of its policy or procedure, intended to discriminate against you, a disparate impact case requires you to show only that the policy or procedure does, in fact, discriminate against a protected class, whether or not your employer intended such discrimination.

Keep in mind that “adverse impact” is synonymous with “diverse impact,” and “adverse treatment” is synonymous with “diverse treatment.”

Disparate Impact Examples

Examples of disparate impact include the following:

• A company requires all applicants to pass a physical strength and stamina test as a condition of employment. Such a test adversely impacts female applicants.
• An employer requires all applicants to make a certain score on an IQ test as a condition of employment. Such a test adversely impacts African Americans and other minorities who likely have not had the educational opportunities available to white employees.
• A company requires all applicants to pass an English literacy test as a condition of employment. Such a test adversely impacts people who recently immigrated to the U.S. It also affects those of certain ethnicities whose native languages differ considerably from English.
• A company requires all employees to have a college degree in order to be considered for promotion to manager. Such a policy adversely impacts African Americans and other minorities.
• An employer requires all applicants to have a certain credit score or higher as a condition of employment. Such a policy adversely impacts African Americans and single mothers who likely have lower credit scores or no credit history whatsoever.
• A company hires only four female applicants for every 10 male applicants it hires for a certain position; such a practice adversely impacts women.

Business Necessity

Once you establish a prima facie disparate impact case, the burden of proof shifts to your employer to show that its policy or procedure in question has a valid business necessity.

Prima facie is a Latin term meaning at first sight or first encounter. Consequently, a prima facie case is one where the evidence that you produce at trial is sufficient to establish a presumption that your employer’s practice or policy disparately impacted you and others of your protected group, whether or not your employer intended that outcome.

The disparate impact presumption, however, represents a rebuttable one. In other words, if your employer presents sufficient evidence of its own to show that it has a legitimate business reason for the policy or procedure in question, you will not win your case. Business necessity, however, requires that your employer show that its policy or procedure has a “demonstrable relationship to the requirements of the job in question.”

Disparate Impact Based on Age

The Age Discrimination in Employment Act of 1967 failed to make it clear whether workers could bring disparate impact lawsuits against their employers based on policies and procedures that discriminated against employees or potential employees aged 40 or older. In 2005, the U.S. Supreme Court ruled that they could in the case of Smith v. City of Jackson. This case also established different rules that apply to disparate impact lawsuits based on age.

In all other types of disparate impact lawsuits, your employer must show a business necessity for any policy or procedure that disproportionately affects a protected class of people. However, say your underlying complaint is that your employer’s policies or procedures are a form of age discrimination. It doesn’t matter  whether it is intended or not. Your employer has a second way to rebut your first showing of disparate impact. It can demonstrate that its policy or procedure is based on a reasonable factor other than age, commonly referred to as the RFOA defense.

For instance, an older worker was laid off in a company’s reduction in force initiative. The employer can escape disparate impact liability if it can show that the method(s) it used to determine who it would lay off had nothing to do with age. That is true even though the method(s) ultimately affected significantly more of its older workers than others.

Why You Need an Experienced Lawyer

Disparate impact lawsuits are usually difficult to prove. Of necessity, they rely on obtaining your employer’s records with regard to the policy or procedure you’re complaining about. Then intensive analysis of those records is done by statisticians and other experts in statistical analysis. In addition, you likely face strict time frames in which to bring your lawsuit. You’ll also face the necessity of obtaining a letter of right to sue from the Equal Employment Opportunity Commission. The EEOC is the government agency tasked with overseeing employment discrimination cases.

An experienced employment discrimination lawyer can guide you through the entire process. They’ll also make effective use of the discovery process. This requires each side in a lawsuit to provide its evidence to the other side prior to trial. They can then help you find the necessary experts to analyze the records you receive. They’ll ultimately act as expert witnesses to explain the findings to the judge and jury in layman’s terms. This is in hopes it will convince them that the facts and figures prove disparate impact.

Work With an Experienced Local Lawyer

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