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. Restated, unlike discriminatory treatment actions, the employee does not have to demonstrate an intent to discriminate. Rather, the plaintiff must prove that the employer’s 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 employer’s successful demonstration of a business necessity, the plaintiff must then show that other policies would serve the employer’s 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 employee’s protected class.
⁃ Discussion: 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?