Disparate Impact - Explained
A Policy that Discriminates Against Protected Classes of Employee
Written by Jason Gordon
Updated at April 6th, 2023
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What is Disparate Impact?
Disparate impact is a form of discrimination that involves a policy or practice that is not primarily motivated by a discriminatory purpose but has a discriminatory impact on a protected class of individual.
Next Article: Retaliation Under Title VII Back to: EMPLOYMENT DISCRIMINATION
What is Required to Show Disparate Impact?
Unlike discriminatory treatment actions, in a disparate impact action the employee does not have to demonstrate an intent to discriminate.
Rather, the plaintiff must prove that the employers practices or policies had a discriminatory effect on her due to her race, gender, religion, etc.
The effect on the employee must be substantial and related to an identifiable disadvantage or a loss of opportunity.
Employers can defend such a claim by proving that the alleged discriminatory policies are job-related and based upon a business necessity.
That is, the employer must show that there was a bona fide occupational qualification to overcome the employers successful demonstration of a business necessity, the plaintiff must then show that other policies would serve the employers intended purpose without having a discriminatory effect or impact.
Note: To prove a discriminatory impact case, the employee most generally provide extensive data and demonstrate statistically that the policy had an impact on anyone belonging to the employees protected class.
Discussion Question
How do you feel about the possibility of facing liability for a policy that did not have a discriminatory intent? How much of an impact on protected classes of employees must a policy have to be considered substantial and thereby actionable? If an employer demonstrates that a valid business necessity for discrimination exists, should the policy be actionable if it was not the least discriminatory method available? Why or why not?
Practice Question
Pete is an employee of ABC Corp. He is Jewish and frequently attends religious service on Saturdays. While the company does not mandate participation, he believes that the company policy of incentivizing employees to participate in work events on Saturdays has a discriminatory impact on Jews. If Pete wishes to bring a discrimination action against ABC Corp, what must he show in order to demonstrate disparate impact?
Related Topics
- Employment Discrimination (Intro)
- What is Employment Discrimination?
- Glass Ceiling
- What are the major Employment Discrimination laws?
- Civil Rights Act of 1866 (1981 Actions)
- Age Discrimination in Employment Act (ADEA)
- Americans with Disabilities Act (ADA)
- The Rehabilitation Act
- Job Accommodation Network
- Genetic Information Non-Discrimination Act (GINA)
- Health Insurance Portability and Accountability Act (HIPAA)
- Affordable Care Act (ACA)
- Uniform Service Employment and Reemployment Rights Act (USERRA)
- Sexual Orientation and Identification
- What is Affirmative Action?
- What is employment discrimination protection under state law?
- Overview of Title VII (Civil Rights Act of 1964)
- Civil Rights Act of 1964
- What is employment discrimination under Title VII?
- How are Title VII protections enforced?
- Wrongful Termination Claim
- Disparate Treatment
- Disparate Impact
- What is race discrimination under Title VII?
- What is national origin discrimination under Title VII?
- What is religious discrimination Under Title VII?
- What is sex discrimination under Title VII?
- What is sexual harassment or Hostile work environment under Title VII?
- Quid Pro Quo
- What is pregnancy discrimination under Title VII?
- Equal Pay Act of 1963
