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Proving discrimination through disparate impact

On Behalf of | Nov 28, 2023 | Discrimination, Employment Law

Most of us know what open discrimination looks like, but oftentimes workplace discrimination isn’t so obvious. Sometimes, it might not even be intentional.

If a worker cannot provide evidence that an employer intended to discriminate against them, can they still be victorious in an employment discrimination case? In cases involving disparate impact discrimination, the answer is yes.

Disparate treatment example

Florida and federal laws prohibit discrimination in the workplace on the basis of race, gender, religion and several other characteristics. When we discuss these types of illegal discrimination, we usually talk about cases in which an employer treated one class of workers worse than another because of their protected characteristic. This is known as disparate treatment discrimination.

For example, take a case in which an employer posts a policy that he will pay women less than men and only promote male employees into leadership roles. When questioned about this practice, the employer says he doesn’t believe women have the intelligence to be good leaders. This employer is treating female workers worse because of their gender, a protected characteristic. When a group of women takes action against the employer for discrimination, they provide evidence of the company’s hiring and promotion policy as well as the employer’s statements.

Disparate impact example

Many cases are not as straightforward as the example above. in many cases, an employer never publishes an obviously discriminatory policy, and never publicly makes any bigoted remarks, but nonetheless carries out a practice that discriminates against one group of workers because of their protected status. In employment law, this type of practice can be known as disparate impact discrimination.

For example, imagine an employer who enacts a height requirement: All new employees must be at least 5 feet 9 inches tall. The policy applies to both men and women, and so it appears on its face to be nondiscriminatory. After all, height is not one of those characteristics that is protected under the law.

However, the effect of this policy is a disparate impact on women. Many men are 5 feet 9 inches tall or taller, but most women are not. As a result of the policy, the employer hires many men and hardly any women.

If a group of women were to file a discrimination claim against this employer, they would have a hard time gathering evidence that the employer intended to discriminate against women. However, they can prove that policy did have a discriminatory impact.


Of course, the employer has a right to a defense. When accused of disparate impact discrimination, an employer can defend itself by showing that it had a legal and nondiscriminatory reason for its policy.

For example, if the job involves a lot of heavy lifting, an employer might have a valid reason for imposing a physical strength requirement, even if the policy leads to more men being hired than women. However, if there’s no legitimate reason for the policy, the employer may indeed be found liable for discrimination.