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What Is Disparate Impact Discrimination?

Most people—and most employers—condemn discrimination when it is overt and intentional. However, there are many different types of discriminatory treatment that can occur with or without any intent to do so. One of the most common types is referred to as disparate impact discrimination, where a facially neutral policy can lead to an unintentionally adverse impact on protected classes. If you believe that you have been subjected to this type of discriminatory treatment, calling an experienced attorney can help you understand your options.

Intentional and Unintentional Mistreatment

The phrase “disparate impact” was first seen in the case of Griggs vs Duke Power Company (1971), in which the defendant’s practice of requiring certain scores on aptitude tests in order to be promoted was ruled unconstitutional. While Duke Power Company did not intend to discriminate against workers of color, the Supreme Court found that the test policy did put workers of color at a disadvantage and invalidated the policy.

In these types of cases, one will hear of disparate treatment and disparate impact. The former is the specific actions of an employer, while the latter is what results from those actions. Disparate treatment is usually intentional, while disparate impact is often wholly unintentional—but both are actionable if it can be established that the employee in question suffered a “disproportionate negative impact” because of their membership in a protected class. In other words, if you are a member of a protected class, it does not matter whether the alleged discrimination was intentional or not; either may be the subject of a complaint.

Difficult – But Not Impossible

Proving disparate impact can be a difficult endeavor, primarily because there is no specific test for it happening. Both objective and subjective criteria (physical strength requirements or aptitude tests are objective, while interview perceptions and ability are subjective) will be at issue in this type of case, and it is still possible to prevail on your claim. But in order to do so, it will generally have to be on a case-by-case basis, requiring a long discovery period.

Be advised that the employer does have the right to defend themselves in cases like these, and the most common defense that they will use is called the business necessity defense. Essentially, if the employee establishes that a discriminatory pattern exists, the employer then has the opportunity to argue that the pattern is justified out of business necessity. Title VII of the Civil Rights Act of 1964 does not go into specifics as to what constitutes a “business necessity,” but it does hold that unless it can be proven, the employee will generally prevail.

Contact A South Carolina Employment Discrimination Lawyer

Being discriminated against due to a characteristic you cannot control is a dehumanizing, disheartening experience. If you believe that this has happened to you, consulting an experienced South Carolina employment discrimination attorney can help answer your questions about seeking recourse. Attorney A. Christopher Potts has been handling these cases for years and is ready to assist you with yours. Contact the firm of Hitchcock & Potts today to speak to an attorney.

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