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What is Disparate Impact Discrimination?

Many people would recognize treating an employee unfairly or harassing them for their race, gender, age, or other protected characteristics as discriminatory conduct. However, employment discrimination isn’t always so obvious, leading some employees to question if it’s happening to them. In some cases, they may suspect that something is wrong but may not think that it classifies as employment discrimination, which can prevent them from reporting it and getting help. This can often be true in the case of disparate impact discrimination.

The key to understanding disparate impact discrimination is the “impact” part. It’s not about what’s on the surface but the outcomes. The law recognizes that sometimes policies that seem neutral can still unfairly impact certain groups. That’s why laws like the Civil Rights Act and the Age Discrimination in Employment Act exist – to prevent these unintentional yet harmful effects.

Employment discrimination isn’t always intentional, but that doesn’t make it any less harmful for the employees who experience it. Learn more about disparate impact discrimination and how you can get help.

Disparate Treatment

Disparate treatment is what many people might picture when they think about what employment discrimination looks like. This occurs when a job applicant or employee is treated less favorably due to their membership in a protected class.

Not only are employees treated differently because of their protected characteristics, but this conduct is intentional. For example, employers paying women less than men due to their gender or harassing an employee because of their race are examples of disparate treatment in the workplace.

When disparate treatment occurs, it can be more noticeable that employees of a protected class are being treated unfairly because of their protected characteristics.

The laws that prohibit disparate treatment aim to ensure that people are judged on their merits, skills, and qualifications, rather than personal characteristics. It’s important to note disparate treatment is about intent. In this case, someone is intentionally discriminating against a person because of who they are. It’s not about accidental or unintended consequences like disparate impact discrimination.

Disparate Impact

So, what is disparate impact?

Disparate impact occurs when a seemingly neutral policy or practice negatively impacts people of a protected class. Unlike disparate treatment, disparate impact can be unintentional, but that doesn’t mean it isn’t unlawful employment discrimination. An employer may have intended for a policy or practice to affect all employees equally but didn’t consider the adverse effects it would have on certain employees of a protected class. One example of disparate impact in the workplace is requiring a strength test that negatively impacts women and prevents them from having the same opportunities as men.

However, policies that adversely affect members of a protected class may not be considered discriminatory if there is a legitimate reason for the policy or practice. For example, the physical strength test may not be considered unlawful discrimination if a certain level of physical strength is necessary for the job and the job can’t be performed without it, even if women face disproportionate adverse effects. Employers would need to prove that there is a job-related reason for the policy or practice.

As all employees are subjected to these policies and practices, they might not be an obvious sign of discrimination to some. However, even if discrimination was not the employer’s intent, disparate impact discrimination is still prohibited.

How to Prove Disparate Impact

Now that you understand the differences between disparate treatment vs. disparate impact, you need to know how to prove it.

Proving that disparate impact occurred is often not easy. As with any complex employment discrimination matter, it’s in your best interest to consult with an experienced employment discrimination attorney. This will give you the best chance at proving that a workplace policy or practice discriminated against employees belonging to a protected class.

If you suspect that you’ve experienced disparate impact discrimination, you’ll need to show that employees in your protected class experienced disproportionate adverse effects as a direct result of the practice or policy.

If your employer does try to defend themselves by claiming that the practice or policy was a legitimate need, you will also need to show that there was a less discriminatory alternative that would fit that need.

Protect Yourself from Employment Discrimination with Bantle & Levy

Don’t assume that a workplace practice or policy isn’t discriminatory just because everyone has to adhere to it. This can still violate your employee rights and keep you from having equal opportunities due to your membership in a protected class.

If you experience or witness what you believe to be disparate impact discrimination, don’t stay silent. Report it to your HR department or a supervisor. Companies often have procedures for addressing such issues; reporting them is crucial. Keep thorough records of your work-related interactions, especially if you suspect discrimination. This includes emails, memos, performance reviews, and any incidents where you feel you were treated unfairly. If they don’t do anything or don’t do anything that fixes the issue, they have it on record that you reported it, and you can consider filing a lawsuit.

Disparate impact discrimination can be complicated, which is why you need Bantle & Levy. We’ve helped employees get justice for employment discrimination for years. Contact us today to discuss your situation.

Bantle & Levy

Lee Bantle is a partner at Bantle & Levy LLP. He has extensive legal expertise, admitted to the bars of the U.S. District Court and the U.S. Court of Appeals. With a distinguished academic background and clerkship experience, he has been recognized as a top-rated civil rights attorney and esteemed lawyer. In addition to his successful career, he has actively contributed to various legal organizations and serves as a faculty member for NYU's Annual Workshop on Employment Law for Federal Judges.

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