Disparate impact discrimination is hard for a lot of people to understand because it is (usually) a type of unintentional discrimination.
On the surface, an employment or business practice may seem neutral and equally fair to everyone. In practice, however, the policy or method of doing business ends up being discriminatory against a protected class of employees if it excludes a group in a way that the employer simply didn’t foresee
For example, the landmark case that is often cited in disparate income litigation involved a company policy at a power plant that required anyone applying for a position higher than the lowest-paying menial labor jobs to either possess a high school diploma or pass an I.Q. test. At that time period, many African-Americans lacked high school diplomas and I.Q. tests were often slanted against minorities. The policy, while superficially neutral, effectively eliminated most of the African-American applicants from eligibility for the higher-paying jobs.
Women have often pressed disparate impact cases in jobs that had strength requirements that were virtually impossible for even an extremely physically-fit woman of average size to meet — especially if there was no valid reason to make the strength requirement that extreme.
The electronic age has produced even more new ways to accidentally create disparate impact cases, especially when it comes to hiring practices. If a company exclusively advertises its job openings on only one social media platform, for example, it may be excluding the vast majority of older applicants or racial minorities — if the user demographics of that social media platform show that it is used predominately by white people under the age of 30.
As you can probably imagine, disparate impact cases can be difficult to prove because they often require a dizzying amount of research and statistical information in order to produce convincing evidence that will stand up to a jury’s scrutiny. There are also special rules that have to be met in order to successfully press a disparate injury claim based on age.
Any workplace discrimination claim involving disparate impact is bound to be highly complex and time-sensitive due to existing regulations. Make sure you discuss your options with an attorney without delay.
Source: FindLaw, “Disparate Impact Discrimination,” accessed July 06, 2017