What Is Disparate Impact Discrimination?

Federal and state laws prohibit intentional discrimination based on race or gender. Yet, discrimination can be unintentional. Accidental discriminatory actions could still be illegal.

Proving this type of discrimination can be difficult. There are no universal standards that could define all policies and practices that will create an unfair, harmful effect. It heavily depends on the facts of each unique case. That’s why understanding this legal theory can be helpful.

It can be hard to know whether you suffered disparate impact in your job. You can discuss your situation with a workplace discrimination attorney.

Disparate Impact vs. Disparate Treatment

Intent is a key difference between disparate impact and disparate treatment discrimination. The actual outcome of an employer’s policy matters.

Disparate treatment is when an employer intentionally treats a worker differently for a discriminatory reason. For example, a hiring manager might reject female applicants just because of their gender or potential pregnancy. Discriminatory treatment can also happen under English-only policies.

Disparate impact doesn’t depend on discriminatory intent. An employer might simply fail to consider how an action would disadvantage one group of workers unfairly. The employer still could cause harm, or an “adverse effect,” to some employees more than others. This accidental oversight is a form of discrimination.

Both types of discrimination violate the law. But the type you face can affect your legal claim, such as the evidence and arguments you’ll need to prove it.

Examples of Adverse Effects at Work

Disparate impact discrimination is a legal theory recognized by the courts. Related lawsuits often come from employment actions that affect a large group of people in similar situations. This group suffers an adverse effect from the action.

A few possible examples of disparate impact discrimination include:

• Job cuts that disproportionally affect LGBTQ+ employees
• Physical fitness tests during the hiring process unrelated to job duties, which may disqualify most older workers from being hired
• Overtime quotas that are difficult for workers who are parents or family caregivers to fulfill, leading to poorer performance reviews

The first U.S. Supreme Court case about this issue looked at a company's rule that job applicants needed a high school diploma. Even though the employer didn't mean to, this rule kept out many more African-American applicants than white applicants.

Federal Laws for Disparate Impact Discrimination

There are many federal discrimination laws. Broad protections come from Title VII of the Civil Rights Act of 1964. This law defines the members of a protected class based on:

• Race
• Color
• Religion
• Sex, including sexual orientation and gender identity
• National origin

In 1991, Title VII changed. This change clarified how disparate impact can be discrimination. An employee may show that a certain employment practice has an unfairly negative effect. Then the employer has to prove that the practice is necessary for the job and the business. If they fail to do so, a judge may rule the action was discriminatory.

Proving Disparate Impact Claims

It can be hard to prove this type of discrimination. There is no one test or threshold to prove it. Each claim is decided on a case-by-case basis. It may need statistical analysis and comparisons. If you need help, you can contact an attorney and the Equal Employment Opportunity Commission (EEOC).

A disparate impact claim has the following elements:

• Identify the employer’s policy or practice
• Prove that a specific group of workers was harmed
• Show a significant disparity, which means a certain type of worker suffered a much larger share of the harm
• Prove the employer’s action is what caused the unequal harm to workers

Age-related discrimination cases are difficult because different laws protect individuals from discrimination based on age. Employees can still establish age discrimination based on a disparate impact under these laws, but employers have more leniency in defending their practices.

Employers’ Duty to Avoid Discriminatory Policies

Employers must take care to create neutral policies that prevent discrimination. For example, a layoff might focus on seniority, job performance, and job function. This approach could be more reliable and fair than letting mangers decide which employees they like best.

Yet, the decision to let managers choose layoffs might not be automatic discrimination. A plaintiff would still have to show it had a disproportionate and discriminatory effect. That’s what often makes these discrimination claims challenging.

Exceptions to Disparate Impact Laws

According to the Supreme Court, an employee needs to prove that a practice caused harm to their protected class. Next, the burden of proof shifts to the employer.

In defense, the employer must show a legitimate business reason for the practice or policy. The employer must do more than prove its intent wasn’t discriminatory. It must also show how the action fits into bigger business goals or mission.

Employers might use a bona fide occupational qualification (BFOQ) defense. This term refers to a genuine need for a certain kind of worker. The reason must relate to the job function or essential skills but not discriminatory bias.

Notable Court Cases in Disparate Impact Discrimination

Many legal cases have contributed to the evolution of disparate impact discrimination. These cases have highlighted the existence of discriminatory practices.

These landmark cases have also set precedents for future litigations. They influence how courts analyze, interpret, and rule on disparate impact claims.

Griggs v. Duke Power Co.

One pivotal case was Griggs v. Duke Power Co., brought before the U.S. Supreme Court in 1971. It challenged the power company's requirement for a high school diploma and intelligence tests for job promotions. The court ruled that such practices, which claimed to be neutral, disadvantaged African-American employees. 

As a result, the burden of proof was shifted to the employer. The employer had to demonstrate that these requirements were genuinely job-related and necessary. This established a significant precedent in disparate impact cases.

Smith v. City of Jackson

Another notable case is Smith v. City of Jackson (2005). Here, the Supreme Court clarified that the Age Discrimination in Employment Act (ADEA) applied to disparate impact claims. This case broadened the scope of protections against age-based discrimination. It also showed the importance of ensuring fairness in employment practices that might disproportionately affect older workers.

Ricci v. DeStefano

Additionally, the case of Ricci v. DeStefano (2009) examined the practice of discarding the results of promotional exams. This was due to concerns over the disparate impact on minority candidates. This case emphasized the complex balance between anti-discrimination laws and legitimate business necessity. It also highlighted the challenges in disparate impact issues.

Talk to a Discrimination Lawyer About Unfair Treatment at Work

The discriminatory effect you suffer at work can have an adverse impact on your overall job performance. To prove that your employer's decisions have a negative impact on a specific group, you need to understand the law and present all the facts. Talk to a local employment law attorney who knows about the harm caused by these unfair practices.