Last time, we began discussing the legal theory of disparate impact in workplace discrimination cases. As we noted, the term is distinguished from intentional discrimination, or disparate treatment, in that it encompasses cases in which an employer institutes neutral policies which disproportionately disadvantage protected classes.
There are a number of ways employers might impose facially neutral policies that end up having a disparate, adverse impact on protected classes. One area where the possibility can be readily seen is with employment tests and selection procedures. Discriminatory hiring and selection procedures are illegal under several federal laws, and employers are generally going to be careful about avoiding intentional discrimination against employees.
Proving that a screening test has a disparate impact based on race, sex, color, religion, or national origin usually requires that the plaintiff provide statistical analysis evidence. When such analysis demonstrates a disproportionate adverse impact based on membership in a protected class, the presumption is that the policy is discriminatory, unless the employer can show that test is related to the requirements of the job and is consistent with business necessity.
Another facet of the analysis is that, if there is a less discriminatory alternative to the policy, the existing policy will be deemed discriminatory. If there is no selection procedure which could accomplish the same task without having a disproportionate, adverse impact on applicants in a protected class, the policy would not be considered discriminatory.
Working through the evidence required to demonstrate disparate impact is not an easy matter, particularly in close cases, and it is important to receive guidance and advocacy from an experienced attorney when pursuing a case. In our next post we’ll look at a case that demonstrates this point.
Sources: EEOC, “Employment Tests and Selection Procedures,” Accessed March 22, 2016.