Unintentional Discrimination

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What Is Unintentional Discrimination?

Sometimes, an employer's policies adversely affect employees based on their sex, race, or other protected characteristic. The policies or criteria may seem neutral, but end up having a disproportionate outcome on members of different protected classes. In legal terms, this kind of policy has a "disparate impact" on members of one protected class as compared to another. For example, a minimum weight requirement for a job may violate anti-discrimination laws because it would exclude a disproportionate number of women, as women generally weigh less than men.

Can the Employer be Liable Even if It Doesn't Intend to Discriminate?

Yes. Even if the employer does not intend to discriminate, he or she can still be held liable for employment discrimination if a policy disproportionately affects different groups of protected people.

Can an Employer Defend its Policy?

There are a number of defenses an employer can use to defend its policy:

Although the city wanted to throw out the test as being unintentionally discriminatory, the group being promoted argued that it would be intentional discrimination to deny them the promotion.  The United States Supreme Court allowed the test to stand despite its unintentional discriminatory effect.

What about Tests for Screening Job Applicants?

Employers can use tests to screen applicants so long as they are job-related. “Job-related” refers to the minimum qualifications an applicant needs to perform the job. If a test operates to deny an extraordinarily large number of minorities it may be illegal.

How Do I Prove that a Policy or Criterion is Discriminatory?

The first step is to contact the Equal Employment Opportunity Commission (EEOC). The EEOC will perform an investigation and then will bring a case to court themselves, dismiss the case, or give you a “right to sue” letter. The letter is required if you wish to sue in court for employment discrimination, regardless of intention. You must also have a “well-drafted” complaint along with the letter to enter the federal court system.

The next step is to use statistics to show that the practice or selection criterion has an adverse impact on a protected group. The employee must show then show that the practice is the direct cause of the adverse impact.

If the employer can offer a valid defense of the policy, the next step would be to show that there are alternate means of achieving the same result. An employer who refuses to adopt the alternative means is presumed to be engaging in lawful discrimination.  

Do I Need a Lawyer for my Discrimination Claim?

Because of the complicated procedures involved with employment discrimination claims, an experienced employment lawyer can be very helpful. An employment lawyer can help you prove disparate impact and represent you in court.

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Last Modified: 10-08-2014 03:39 PM PDT

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