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Disparate Impact Claims
My employer’s policies disadvantage women more than men.What does disparate impact mean?Disparate impact means some work condition or policy has the effect of discriminating against women, even though it may not have intended to do so. What is a facially neutral policy?A facially neutral practice or policy is one that does not appear to discriminate in its exact wording or construction. What does disparate impact look like? If you have noticed that a practice or policy of your employer’s has an unfair effect on women that it does not have on men, such policy may be in violation of Title VII under a disparate impact analysis. I think that a company policy adversely affects me because of my gender, how do I prove it? These requirements may vary slightly according to the region of the country in which you reside. In most jurisdictions you must be able to prove that:
1. your employer uses a particular employment practice that causes disparate impact on the basis of sex; and either
2. the employer fails to demonstrate that the challenged policy is job-related and for a business necessity; or
3. there is an alternative method to achieve the goal without discriminating. A claim of disparate impact can be proven or disproved solely on the basis of statistical evidence. The evidence must show a significantly discriminatory pattern. It is important for you to know that, although courts try their hardest to apply the law in parallel fashion across the country, sometimes different courts will place a different level of importance on one requirement over another depending on the circumstances surrounding each case. What is the difference between disparate impact and disparate treatment?Disparate impact is the effect of a work condition or policy that was not necessarily intended to discriminate. Disparate treatment is explicit discrimination against someone because of their protected class. Are there times when an employment policy or practice may legally impact women different than men? Yes. There are two ways to pursue a disparate impact claim: one for a facially discriminatory policy, and one for a facially neutral policy. The only defense to a facially discriminatory policy is a bona fide occupational qualification. The defense to a facially neutral policy is to prove a legitimate business necessity. If your employer can prove that the policy reflects a legitimate business necessity, they can overcome the presumption of discrimination. The difference between a bona fide occupational qualification and a legitimate business necessity is essentially the degree of necessity. Proving a bona fide occupational qualification requires proving that the business cannot exist without the discrimination. Proving a legitimate business necessity requires a showing that the business would be seriously impacted with a different policy. What could my employer do to deny my allegations, and how do I respond to their denials? Once you have provided enough evidence to show that the challenged policy does indeed have a significantly discriminatory pattern, your employer will rebut by trying to show that the policy is job-related and it amounts to a legitimate business necessity. It is then your turn to show that your employer’s reason is not sufficient to claim necessity or that there is an alternative policy that would accomplish the same goal without discriminating.
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