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 What is “Disparate Impact”?

The term “disparate impact” is related to discrimination laws. It is often used in cases that involve employment discrimination. Title VII of the Civil Rights Act prohibits organizations from discriminating against individuals because of personal or immutable characteristics. Under the Civil Rights Act, all people must be given equal opportunity for advancement, promotion, salary, and hiring. However, while organizations may not be openly discriminatory, there are different types of discrimination that may still run afoul of the Civil Rights Act. Two “shades” or “flavors” of discriminatory practices include “disparate impact” and “disparate treatment.”

Disparate impact is a commonly used term in employment discrimination cases. It occurs when policies, practices or rules that appear to be neutral actually result in a disproportionate impact on a protected group or protected class. The organization may not intend for the rules or policies to be discriminatory; however, disparate impact still occurs when the policy’s implementation ends up having a discriminatory effect. This means that the policy, even though neutral on paper, is illegal in the application.

For example, a strength requirement for a job may inadvertently screen out a disproportionate number of female applicants for a particular job. Requiring all candidates for promotion to receive a certain score on a standardized test could also have an adverse effect on candidates of color. Even though the strength requirement or the standardized test may appear to be objective criteria, disparate impact could still apply in these situations. This can happen if the practice has a disproportionate negative impact on members of a protected class.

Is Disparate Impact Different From Disparate Treatment?

Yes. Disparate impact occurs when seemingly objective or neutral practices have a disproportionate result on members of a protected group. In comparison, disparate treatment refers to practices where a particular group is intentionally targeted and discriminated against. Disparate treatment is the type of discrimination that most people think of. 

To be successful in a disparate treatment case, the employee claiming discrimination must show that they were treated differently because of their status in a protected class. This includes their age, race, gender, religion, disability, or other state of being. While most disparate treatment claims are usually based on the complaints of individual employees, disparate impact claims are based on a company or organization’s actual policies or procedures.

Disparate impact may be unintentional, but if an unintentionally discriminating policy violates the law, then the company is still liable for the results of the policy.

How is Disparate Impact Used in Court?

Cases involving disparate treatment often require the plaintiff to show intentional discrimination. The plaintiff must present evidence that their employer intended to hurt or discriminate against them. Often, these cases can be difficult to prove, because the employer and the employee may have very different views of how the situation at hand played out. 

For example, an employee may file a claim against their employer claiming that they were fired due to their age. However, if the employer counters with an argument that the employee had several customer service complaints and poor performance, the employee will have to overcome the employer’s argument. They may have to show that other, younger employees with similar records of customer service complaints or performance reviews were not terminated or considered for termination. It can be a difficult mountain to overcome, although not impossible.

Disparate impact cases, however, do not need to show intent on the part of the company or organization. Instead, all a plaintiff needs to show for disparate impact is that they were harmed as a result of a company policy. The plaintiff can challenge objective criteria under a disparate impact theory. This criteria can include such as tests, degree requirements, or even physical requirements like being able to lift a certain amount of weight. They may also be able to challenge other policies, including interview or job performance reviews. 

However, it is not enough to simply make the claim. The plaintiff must support their claim that they were harmed as a result of a company policy with evidence. In disparate impact cases, most evidence takes the form of statistical comparisons or documentation demonstrating the negative effect that the policy has on a particular group of people.

The defendant may make the argument that the policy or practice was necessarily related to the job in question, and that it is consistent with the needs of the business for the work at hand. However, the plaintiff can still counter that defense in some situations. For instance, they can prove that the company or organization did not pursue alternative practices that could have reached the same goal and satisfied the needs of the organization without having a disparate impact on the group in question.

Should I Talk to a Lawyer for Help with Disparate Impact Laws?

If you believe that you have been harmed as a result of a discriminatory practice (whether intentionally or unintentionally), it is in your best interests to talk to an discrimination lawyers as soon as possible. A qualified lawyer can help you best understand the legal implications of your situation, as well as help you piece together the strongest possible case. Your lawyer can help protect your rights by representing you in court and working to reach the best possible resolution.

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