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 What Is “Disparate Impact”?

The term “disparate impact” is related to discrimination laws. It is often used in cases involving claims of employment discrimination, but it can also be used in the context of housing, education, and other domains. Title VII of the Civil Rights Act (CRA) prohibits organizations from discriminating against people because of personal or immutable characteristics.

Under the CRA, all people must be given equal opportunity for promotion, salary, and hiring in employment in housing and other areas as well. The civil rights law recognizes two types of discriminatory practices: “disparate impact” and “disparate treatment.”

Disparate impact is a term that is often used in employment discrimination cases. It occurs when policies, practices, or rules that appear neutral have a disproportionate impact on a protected group or protected class. The protected classes are race, color, religion, gender, pregnancy, and national origin. Disability and age are also protected classes.

An organization may not intend for its rules, policies, or job requirements to work in a discriminatory manner; however, disparate impact still occurs when the policy’s implementation has a discriminatory or disparate effect. This means that the policy, even though neutral on paper and even in intention, is discriminatory in the application.

For example, a strength requirement for a job may inadvertently screen out a disproportionate number of female applicants for that job. Requiring all candidates for promotion to receive a certain score on a standardized test could also harm candidates of color.

Even though the strength requirement or the standardized test may appear to be objective criteria, the disparate impact could still apply in these situations. This can happen if the practice disproportionately negatively impacts members of a protected class.

The concept of disparate impact discrimination arose in 1971 in the case of Griggs v. Duke Power Company when the U.S. Supreme Court gave it recognition. Congress then incorporated it into the CRA in 1991.

In the Duke Power Company case, the U.S. Supreme Court was presented with aptitude tests that Duke used to decide who could be promoted and transferred within the company. The company had used the tests because it believed it ensured all its workers were well educated. However, an unintended effect of using the tests was that African Americans were prevented from transferring to positions where they would receive higher pay.

The U.S. Supreme Court ruled that Duke’s use of the tests violated the CRA because they were unrelated to a person’s ability to perform the job and had a disparate impact on members of a protected class, a racial minority group.

Is Disparate Impact Different from Disparate Treatment?

Disparate impact is something different from disparate treatment. Disparate impact occurs when seemingly objective or neutral practices have a disproportionate result on protected group members. In comparison, disparate treatment refers to practices where a particular group is intentionally targeted and subject to discrimination. Disparate treatment is the type of discrimination that most people think of when they think of discrimination.

To succeed in a disparate treatment case, the employee claiming discrimination must show that they were treated differently intentionally because of their status as a protected class member. As noted above, protected classes include age, race, gender, religion, national origin, disability, or other state of being. While most disparate treatment claims are usually based on the complaints of individual employees, disparate impact claims are based on a company or organization’s actual policies or procedures and their effect on classes of people.

The disparate impact may be unintentional, but if an unintentionally discriminating policy violates the law, then the company is still liable for the results of the policy.

How Is Disparate Impact Used in Court?

Cases involving discriminatory treatment require the victim to show intentional discrimination. The victim must present evidence that their employer intended to hurt or discriminate against them and others like them. Often, these cases can be difficult to prove. In the employment situation, the employee must prove that the employer intended to discriminate. Evidence of this kind might be difficult to identify and locate.

For example, an employee may file a claim against their employer, claiming they were fired due to age. However, if the employer counters with an argument that the employee had several customer service complaints and poor performance, the employee will have to overcome the employer’s argument. They may have to show that other, younger employees with similar records of customer service complaints or performance reviews were not terminated or considered for termination. It can be a difficult showing to make, although not impossible.

With a disparate impact approach, however, the victim does not need to show intent on the part of the company or organization. Instead, all the victim must do is show that a policy or rule had a disparate and harmful impact on the victim and others like them. The victim can challenge objective criteria under a disparate impact theory.

This criterion may include job requirements such as tests, degree requirements, or even physical requirements such as lifting a certain amount of weight. They may also be able to challenge other policies, including success criteria for interviews or job performance review criteria.

Of course, a victim must support their claim that they were harmed due to a company policy with evidence. In disparate impact cases, most evidence takes the form of statistical comparisons or documentation demonstrating the negative effect that the policy had on a particular group of people who should be members of a protected class.

In its defense, the entity or organization may argue that the policy or practice was necessarily related to the job in question and that it is consistent with the goals of the entity’s work.

However, the victim can counter that defense in some situations. For instance, they can prove that the entity or organization did not pursue available alternative practices and could have achieved the same goal and satisfied the organization’s needs without having a disparate impact on the group in question.

Does Disparate Impact Apply to Housing Discrimination?

Congress adopted the federal Fair Housing Act to fight discrimination in housing. In order for a person to succeed with a claim of disparate impact under the Fair Housing Act (FHA), they must prove the following:

  • Connection: The victim must present evidence showing a clear connection between a policy or practice and the discriminatory effect. This is the “disparate impact;”
  • Necessary Policy: To defend against the claim, the person or entity sued can show that the policy is in fact needed to achieve a legitimate goal. If there were a variety of ways to achieve the goal and the defendant chose one that had a disparate impact on a protected class, the defendant can be liable for the consequences of their choice;
  • Alternative Policy: If the person or entity sued was able to prove that its policy was necessary to achieve a legitimate goal, the victim would then have to show that an alternative, non-discriminatory policy to achieve the goal was available.

These same steps would apply even outside the context of housing discrimination.

Should I Need a Lawyer for Help with a Disparate Impact Issue?

If you believe that you have been harmed as a result of a discriminatory practice, whether it was intentional or unintentional, it is in your best interest to consult with a discrimination lawyer as soon as possible.

A qualified lawyer can help you best understand your situation’s legal implications and help you piece together the strongest possible case. Your lawyer can help protect your rights by representing you in court and working to reach the best possible resolution.

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