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Disparate Impact Discrimination 101

When most people discuss discrimination, they think of active, hostile and open mistreatment of someone based on their race, gender, or other visible characteristic. However, in reality, a large proportion of discrimination incidents are over what is called disparate impact, which is when a policy may not have been written to be discriminatory, but the effect of the policy is discriminatory all the same. It can be difficult to pinpoint disparate impact cases, but they are quite common, especially in issues of alleged racial bias.

Impact Is The Key

Generally, courts hold that even if no explicit intent to discriminate exists, an employer can be held liable if a specific group experiences negative consequences as a direct result of whatever action or policy is under scrutiny. For example, a ban on facial hair in customer-facing positions at a company may unintentionally discriminate against employees of certain faiths, denying them promotions and other benefits. The Supreme Court has held that while some employment practices that wind up being discriminatory can be justified out of business necessity, anything that cannot is prohibited, and may lead to liability.

The first major case dealing with this doctrine was Griggs v. Duke Power Co (1971). Duke required a high school diploma and a good score on an aptitude test before promoting an employee to a higher-level job. However, at the time, many people of color were routinely denied educational opportunities, and when they did get the chance to attend high school or university, the schools themselves were often inferior to those that admitted whites. Also, the court was able to show that neither of these requirements were actually important in terms of doing the work of the higher-level job. Because of this, the court held that Duke Power was discriminating based on disparate impact.

How To Prove It?

In many cases, courts will accept a prima facie showing of discrimination if there is a noticeable statistical anomaly in results. The most commonly used formula is the so-called four-fifths rule, which holds that a protected group must be “chosen” or “succeed” at least four-fifths (80 percent) of the most successful group’s rate, or the policy is discriminatory. For example, in Griggs, the people of color who had high school diplomas was 12 percent, compared to approximately 35 percent for white people. Divide one by the other and the answer is 35.3 percent – nowhere near the 80 percent threshold.

It is important to keep in mind, however, that statistics are not the only way to show discrimination, and in some cases, it may not be persuasive at all. If an employer can defend a policy by showing that there is a business necessity to keep it in place (even if it may be discriminatory), a showing of statistical inequalities will not be enough to argue it should be changed. In most cases, “business necessity” will overcome other objections, at least in the case of private enterprises.

Call An Employment Discrimination Lawyer

Proving any kind of discrimination can be difficult, but disparate impact can be especially hard to establish because it can be so indirect. Having an attorney on your side who has experience with such cases can make a difference. Attorney A. Christopher Potts has handled these cases for years, and the firm of Hitchcock & Potts is happy work with you. Contact us today to schedule an appointment.

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