Disparate Impact Claims
What does disparate impact mean? Disparate impact means that there are policies or practices in place where you work that do not overtly treat women in a discriminatory way, but nonetheless have a negative impact on women. These policies are often described as "facially neutral," in that they don't mention women specifically, but they harm women in practice. What is a facially neutral policy? A facially neutral policy is one that does not mention women specifically, but harms women in practice. Often this will take the form of a test or employment requirement that applies to men and women equally, but has the effect of excluding women from jobs, promotions, or other benefits. What does disparate impact look like? Disparate impact may be occurring if you notice that your employer is hiring, promoting, or benefiting significantly more men than women. If a policy has the effect of "weeding out" women who are otherwise qualified, this may be a case of disparate impact. What kinds of claims can be brought as a disparate impact claim? Some of the most common types of disparate impact claims are failure to hire, and failure to promote claims. In these claims, the employer's policy for hiring or promoting disadvantages women. Other examples of disparate impact claims may relate to pay increases, pregnancy, transfers, training programs, leadership programs, and firing policies. One example of a successful disparate impact claim under the Arizona Civil Rights Act (ACRA) was when a school combined a teaching position with a football coaching position. The effect was to exclude otherwise qualified female applicants and the school was unable to show that having a teacher double as a football coach was necessary for the job of teaching. I think that a company policy adversely affects me because of my gender, how do I prove it? There is a two part test in order to initially make out a disparate impact claim: (1) you must identify a specific practice that you are challenging; and
(2) you must demonstrate "causation," which usually means that you will need statistical evidence that the practice you have identified has an adverse effect on women. Although statistical evidence is almost always necessary, the Arizona court has found that there are times that a job requirement's discriminatory impact is so conspicuous that detailed statistical evidence is not necessary to have a claim. What is the difference between disparate impact and disparate treatment? The main difference between disparate treatment and disparate impact is the intent of your employer. Disparate impact involves a policy which your employer may not have intended to be discriminatory, but which nonetheless affects women more negatively than men. Disparate treatment, on the other hand, involves action by your employer which is explicitly intended to discriminate against women, such as separate pay scales for men and women. Are there times when an employment policy or practice may legally impact women differently than men? An employment practice may legally impact women differently than men if the practice is a business necessity. In order to be a business necessity, the practice must be essential to foster safety and efficiency in the work place. Additionally, your employer may explicitly exclude women from a particular job if sex is a bona fide occupational qualification, which means that it is "reasonably necessary" that a man hold that position. Finally, your employer may use a merit system or seniority system to differentiate between employees, as long as any differences that occur do not result from intentional discrimination on the basis of sex. What could my employer do to deny my allegations, and how do I respond to its denials? Your employer could deny your allegations in a few different ways: (1) it could show that you have provided inadequate evidence that the practice you are challenging caused a discriminatory impact;
(2) it could show that sex is a bona fide occupational qualification, meaning that it is reasonably necessary for a man to hold the position;
(3) it could show that the practice is a seniority or merit system; or
(4) it could prove that the practice is a business necessity by convincing the judge or jury that the practice is essential to fostering safety and efficiency in the workplace. If your employer shows that the practice is a business necessity, you can respond by showing that there is some other alternative practice that would accomplish the same goal without the discriminatory impact. Does it matter when the discrimination occurred? Under ACRA, you must file a claim with the Arizona Civil Rights Division (ACRD) or the Equal Employment Opportunity Commission (EEOC) within 180 days of the discrimination. Keep in mind; you cannot pursue an employment discrimination case through the state or federal courts independently. You must go through the ACRD or the Equal Employment Opportunity Commission (EEOC), which is the federal agency in charge of employment discrimination claims. For more information see How to File a Claim. What options do I have if my employer has fewer than 15 employees? If your employer has less than 15 employees you will not be able to bring a claim for disparate impact under ACRA. However, you can still try to make change in the workplace by taking action such as talking to your employer or starting a WAGE club. What WAGE Clubs Do. For more information see What Does the Law Say. If I prove my disparate impact claim, what remedies am I entitled to?You will be entitled to equitable relief, which is relief intended to reverse the harm you have suffered and restore you to the position you were in before the discrimination took place. You may be able to recover back pay to compensate you for lost earnings, front pay to compensate for a pay differential resulting from discrimination, injunctive relief to correct your employer's discriminatory practices, or reinstatement to any position that you lost as a result of discrimination. For more information see What Can I Get If I Win Return to States Return to Types of DiscriminationReturn to Arizona Law PageLegal Glossary
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