Most of us know that state and federal laws protect workers from blatantly discriminatory practices. For instance, employers can’t put “No Blacks” on a job application because this would be discriminating against workers solely on the basis of their race, in violation of the Civil Rights Act of 1964 and other laws. Likewise, an employer breaks the law if they allow workers to harass each other based on their race, sex, religion or other protected characteristics.
In such a case, a worker who is making a claim of unlawful discrimination could provide evidence of blatantly discriminatory statements. This type of evidence would be very helpful in proving their case.
However, in many cases the discrimination is not out in the open. Instead, the worker must provide evidence that suggests an unlawfully discriminatory practice. For instance, a worker might present evidence that male employees were much more likely than female employees to receive raises and promotions. The employer would then have to defend itself by showing that it had a legitimate business reason for giving raises and promotions to some employees and not others, and that the practice was not the result of sex discrimination.
Disparate impact explained
So far in this blog post, the types of discrimination we’ve discussed could be described as cases of disparate treatment. That is, some employees were treated differently solely because of their race, sex, religion or other protected characteristic. But there are also cases in which workers can prove discrimination by showing disparate impact.
In a disparate impact case, a policy that appears to be equally applied to all workers actually unlawfully discriminates against certain types of workers.
A classic example might be a height requirement. An employer might require that all senior employees be at least 5 feet 11 inches tall. On its face, this policy appears to be neutral, applied equally to all employees. In practice however, the policy has disparate impact on women because they are much less likely than men to meet the requirement.
Intent doesn’t matter
In the example of the height requirement, a woman employee could allege sex discrimination, and provide evidence of the disparate impact. The employer would then have to demonstrate that it had a legitimate business reason for the policy. If it can’t show a legitimate purpose, the worker could win the case.
If you read the above example closely you might have noticed something missing: It’s not necessary to prove that the employer was secretly trying to discriminate against women. The employer’s intent doesn’t matter in these cases. In fact, the employer may not have even realized that its policy would have a disparate impact.
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Building a case based on a theory of disparate impact can be tricky. It can be difficult to gather the evidence and present it in a way that convinces the court. On top of that, the theory is somewhat controversial and subject to changes from the political sphere.
A worker who is considering building a discrimination claim should speak with experienced professionals about their options, and ask whether a disparate impact theory might apply to their case.