What is Disparate Impact Discrimination?

Let’s say that a company had to hire workers. To find these employees, they only advertise and promote the job openings, at college career festivals. Is there anything wrong with doing this?

On the surface, it would seem this is fine. An employer can advertise jobs wherever and however it wants to, and everybody is equally welcome to apply for and compete for the job.

But what’s the ultimate outcome of this job search? It may largely yield only younger applicants and employees, and the job position is not being made available to an older community. As such, this kind of hiring practice is discriminatory, based on what is known as disparate impact

Understanding Disparate Impact

Disparate impact is a form of discrimination where a policy or hiring process or job practice, is, on its face, seemingly fair and neutral. In fact, the employer may have no intention of discriminating against anybody. But the ultimate outcome of the policy is that it excludes or discriminates against a protected class.

A typical example is height. Of course, it is not illegal to discriminate on height. So, if I had a policy that said I would only hire people who were taller than, say, 5-11, that would seem to be legal and fair. But because way more men are over that height than women, the ultimate outcome of that policy would be that I hire significantly more men than women, making it discriminatory.

Proving Discriminatory Policies

To prove disparate impact, you don’t look at one single employee, the way you would with a traditional employment discrimination or harassment case. Rather, you have to look at large numbers of people. So, you would take a policy, and see how it has affected, for example, 100 applicants or 100 employees, to see what effect the policy may be having.

The U.S. Department of Labor has a statistical formula, which compares the selection rate of minority groups to non-minority groups in hiring processes. If the protected group gets selected less than 80% of the time that the majority group does because of the application of a hiring practice or policy, it is considered to be discriminatory on the basis of disparate impact.

Innocent Intentions

Disparate impact cases are difficult, because many times employers have what they see as legitimate, bona fide, and nondiscriminatory reasons for applying the policy. And, in fairness, there are times when policies that may have a disparate impact, may be necessary for the job.

For example, requiring applicants to physically lift a lot of weight to be a firefighter may have the effect of eliminating certain female applicants. But because physical strength is essential to the job, and to public safety such a policy may be allowable, even if the end result is that more men will be able to meet the requirement than women.

Contact the San Jose employment attorneys at the Costanzo Law Firm if you feel you have been the victim of a discriminatory policy at work.

Sources:

home.ubalt.edu/shapiro/rights_course/Chapter9text.htm

prevuehr.com/resources/insights/adverse-impact-analysis-four-fifths-rule/