Nowadays, both employers and employees are well aware that racially discriminatory policies in hiring, firing and any moment in between may be considered unacceptable grounds for a lawsuit. However, many employers do not grasp that not every discriminatory policy is overt. A policy that seems to be racially neutral can, in some cases, be just as discriminatory as an overtly bigoted initiative.
The Equal Employment Opportunity Commission (EEOC) explains that a policy may be facially neutral (that is, not specifically tailored to apply to any one group of people), but it may still be considered discriminatory if it has a negative effect on one specific group of people. For example, prohibiting any type of headwear on the job may affect the ability of Muslim women or Orthodox Jews to be hired, because it is part of their religious practice to cover their hair. The headwear ban is not deliberately discriminatory, but because if it has that effect, the policy may be grounds for complaints. This is referred to as disparate impact.
Generally, a policy will be in violation of Title VII of the Civil Rights Act of 1964 when it affects issues that are not job related and/or consistent with business necessity. This can affect any minority group—gender, sexual orientation, or disability, among others. It is most often seen in racial issues, or at least this has been the case in recent years. Societal factors such as classism can indirectly affect people of color, and the intersection of these policies is often missed by employers. A classic example is over-reliance on criminal background checks. Too often, people of color receive disproportionately heavier sentences for crimes such as drug possession, so they may be more likely to have records than white people convicted of the same offenses.
If You Suspect Disparate Impact
Disparate impact claims have been tested in court, with mixed results. Generally, the first suggested step in pursuing one would be to file a complaint with either the South Carolina Human Affairs Commission (SCHAC) or the EEOC. Either agency will follow the same protocol. They will either take up the case on your behalf, or they will investigate and decline to pursue. If the agency does not take up your case, you will be given a ‘right to sue’ letter which allows you to bring suit against your employer in the relevant state or federal court.
Be advised that it is a defense to a charge of discrimination if the employer can prove that the policy is narrowly tailored and/or based on an individual assessment. But in dealing with race-based issues, it is a rare that a policy that will be “narrowly tailored.” This is simply because there is almost no rational reason that would be considered “narrow” enough to make discrimination based on race acceptable. In constitutional law, racial discrimination must pass a strict scrutiny test, meaning that it must be based on a compelling state interest in order to outweigh the harm caused by discriminating. This is extremely rare, and workplace discrimination would follow the same pattern.
Contact A Knowledgeable Attorney
Disparate impact claims can be notoriously difficult to prove, simply because their effect is not immediately obvious. If you suspect you have been the victim of an unfair policy of this nature, contacting an experienced employment discrimination lawyer can be a good first step.
Attorney A. Christopher Potts has experience in these cases and can sit down with you to help you decide how best to proceed with yours. Contact the office of Hitchcock & Potts today to set up an appointment.