Unintentional Discrimination

What Is Unintentional Discrimination?

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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:

• Business Necessity - An employer can defend these types of policies if he or she can show that they are job-related and consistent with business necessity. If not, a seemingly neutral policy that has a disproportionate effect on different classes may be unlawful.

• Lack of Interest - Another defense is “lack of interest.” This means that the group which is supposedly discriminated against does not have an interest in the activity. For example, the reason a video game store has not hired women is because no women have applied to work at the store. A store cannot hire a group of people who never apply.
  Although “lack of interest” can be effective if the only evidence is statistics which say that a certain group is underrepresented in an area or position, there is a “chicken and egg” effect. The party bringing the law suit can say that the reason nobody applies is that the discrimination from the employer is so strong that applicants will be discouraged from applying, seeing the entire process as a futile gesture and a waste of time.

• Disparate Treatment – Courts are wary about addressing unintentional discrimination if the result would be intentional discrimination instead. For example, in a famous case, a firefighter department used a test to determine which employees would be promoted. The results were extremely skewed, with most “whites” being promoted and everyone else not.

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.

• Non-Coverage – Anti-Discrimination laws only cover employers who have a certain number of employees. The number is either 15 or 20 employees, depending on the law being invoked. The American Disabilities Act, for example, requires that the employer have at least 20 employees before it can be triggered.

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.

Ken LaMance

, LegalMatch Law Library Managing Editor and Attorney at Law

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Last Modified: 03-07-2018 10:51 PM PST

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