Most employers are aware that the law forbids them to intentionally discriminate against employees or hires based on protected categories such as race, gender, national origin or religious adherence. Complications, however, can arise when a company’s practice has a significantly negative effect on employees belonging to a protected group. In such cases, the employer may be committing disparate impact discrimination, even if the practice in question was not introduced with the intent to discriminate. The law does allow exceptions to this rule.
In general, claims of disparate impact discrimination are rarely straightforward, with the outcome tending to depend on finding a balance between the employer’s legitimate interests and the legal prohibition against discrimination. To cut down on the possibility of facing allegations of discrimination, employers should examine their policies and eliminate or minimize unintended discriminatory effects to the fullest possible extent.
Common Types of Potentially Problematic Practices
Disparate impact discrimination can affect protected groups at any stage of the hiring or employment process. Typically, cases are brought when the criteria for company-wide actions have the effect of disadvantaging people belonging to a protected category. Examples of policies that will get close scrutiny from courts include hiring requirements that screen out a disproportionate number of applicants of one gender, layoffs that noticeably result in the firing of a large number of people of a specific race and company policies that affect a group’s religious practices.
Employers should be aware that discrimination may be found even when policies or requirements do not directly target a group. For example, when a high school diploma requirement excluded a significantly higher number of applicants of a specific race, the employer was considered to have engaged in a discriminatory practice even when there was no intent to do so.
Does this mean that an employer can never have physical fitness requirements that can disproportionately affect women or the disabled? Can an employer require employees to clock in on Saturdays or Sundays, impacting those whose religious observance forbids them to work on these days? Frustratingly for many, the answer is: it depends. Disparate impact discrimination cases are extremely fact intensive and the outcome will depend on the specific circumstances involved.
Generally, once the suing employee or job applicant has proved that the employer’s policy actually does have a disproportionate effect on his or her protected group, it is up to the employer to show job or business necessity for the practice in question. For example, an employer that requires applicants for a certain position to be able to lift a minimum of 50 pounds can demonstrate that the job duties of this position will indeed include lifting or carrying things that weigh 50 pounds.
If a disparate impact practice is shown to be necessary to the employer’s business, the next question that will arise is whether it is possible to provide reasonable accommodations to counteract the discriminatory effect. If an employer is open on Sundays, it may be reasonable for it to allow a religiously observant employee to avoid Sunday shift. On the other hand, this may not be feasible for a small business with very few employees. Employers are not required to cripple their business to ensure that no practice has an adverse impact on employees.
In addition to checking policies for any unintended disproportionate effect on protected categories, employers should take it seriously when an employee comes to them with a complaint of discrimination. While it does happen that an employee or job applicant files suit with no warning, the more common scenario is that your employee points out that your policy disproportionately affects his or her group. Instead of brushing this off, it is best to address such a statement seriously, determine the facts and make any necessary changes.
Disparate impact lawsuits tend to be complex and are rarely resolved quickly. Business owners are well advised to take preventative measures to minimize potential claims. Review your company’s policies and practices for any unintentional discriminatory impact, and ensure you can support all your requirements by showing that they are necessary for proper operation of your business.
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