When an individual chooses to pursue an employment discrimination case, there are different theories of discrimination that can be alleged, depending on the facts of the case. In our last post, we looked at one common theory of discrimination: disparate treatment. As we noted, disparate treatment may be proven by either direct or circumstantial evidence, as the evidence allows.
Another theory of discrimination is used in cases where there is a workplace policy or practice which has a discriminatory effect on workers in a legally protected class. The theory, known as disparate impact, applies to apparently non-discriminatory workplace policies which have more of an adverse impact on one or more protected class of workers than other classes of workers.
In order to successfully pursue a disparate impact case, a plaintiff must make an initial showing that an apparently neutral workplace policy or practice has an unfair impact on members of a protected class. This means that the policy negatively affects the protected class at a rate which is significantly greater than members of other groups. A plaintiff must be able to overcome any arguments that the workplace policy was job-related and implemented based on “business necessity.” This is done by proposing reasonable alternatives to the challenged policy which would have less of an impact on the protected class.
Building a strong adverse impact case is not necessarily easy. Demonstrating a significant disparity in the way different groups are treated can be tricky, since different tests can be used to demonstrate this and there can be room for disagreement. In addition, deconstructing an employer’s justifications for such a policy can also prove challenging for plaintiffs who don’t have inside knowledge of business operations.
Regardless of the facts of the case, though, working with an experienced attorney is critical in order to build the strongest possible discrimination case and to have the best possible chance of obtaining fair compensation.