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Disparate Impact: Unfair Policies without Discriminatory Intent

Generally, employment discrimination cases involve intentional acts on the part of an employer. Also called disparate treatment, when an employer wrongfully terminates, fails to hire, fails to promote, reduces hours, reduces pay or otherwise takes an adverse employment action against an employee based upon the employee's race, color, religion, sex or national origin, the employer violates Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-2(a)(1). Title VII also prohibits employment practices that appear to be non-discriminatory at first glance, but when applied, fall more harshly on one group of people when compared to another. In situations where an employment practice has such a disparate impact upon a protected group (i.e. race, color, etc.), the practice also violates Title VII. 42 U.S.C. § 2000e-2(k). The following are a few notes about this often-overlooked illegal act:

 An employer does not need to have acted intentionally. In a discriminatory impact case, an employee only need (1) identify a specific employment practice that has a disparate impact upon a protected class; and (2) show causation. Unlike a disparate treatment case where an employee must prove the employer intentionally discriminated against him or her because of a protected trait, in a disparate impact case, a plaintiff does not need to offer proof the employer meant to discriminate. Garcia v. Women's Hosp. of Tx., 97 F.3d 810, 813 (5th Cir. 1996).Proving causation. Once an employee identifies and isolates a specific employment practice, she must then demonstrate the employment practice caused the discriminatory result. Typically, this is done by offering some sort of statistical evidence. Now, before getting nightmares about your college statistics course, know that the Department of Labor has simplified things a bit. Basically, if one group is selected at a rate of less than four-fifths (80%) the amount of another group, it is assumed that the employment practice caused the discriminatory result. 29 C.F.R. § 1607.4(D).For example, say an employer uses a standardized test to determine which employees to promote to managerial positions. The results of the test come back and fifteen of twenty Caucasians are promoted, and only two of twenty African Americans are promoted. Here, the DOL, and the courts, assume then that the standardized test is what resulted in the gap. Even though the test does not appear discriminatory on its face, the results say otherwise.The Employer's Burden. In the above example, even though the standardized test results in a discriminatory impact, an employer may not be liable for discrimination if it can show that the test (or other employment practice) is job related consistent with business necessity.As you can see, disparate impact claims are complex in nature and can be very fact intensive. If you feel you are the victim of an employment practice that places an entire group of employees at a disadvantage, consult with a board certified employment law attorney who may be able to help preserve your rights. AWR
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