Disparate Impact Claims
NOTE: The District of Columbia Human Rights Act (DCHRA) allows a woman to file a complaint with the D.C. Office of Human Rights (DCOHR) or pursue a private lawsuit. You can assume that the explanation of the DCHRA is the same regardless of which procedure you choose, except where it is noted that they differ. 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. The DCHRA prohibits this type of discrimination. What is a facially neutral policy? A facially neutral policy is one that does not explicitly discriminate against women, but rather appears to be objective. Often this will take the form of a test or employment requirement that applies to men and women equally, but has the practical effect of excluding women from jobs, promotions, or other benefits. The DCHRA prohibits any practice that has the effect of discriminating against a protected group. What does disparate impact look like? Disparate impact may be occurring if you notice that your employer is hiring, promoting, or benefiting significantly fewer women than men. If there is a policy in place which has the effect of "weeding out" women who are otherwise qualified, and the policy does not appear to be relevant to the job, this is likely 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. I think that a company policy adversely affects me because of my gender, how do I prove it? To prove a claim of discrimination by disparate impact you must show all of the following:
1) your employer has a policy that impacts women differently than men; and
2) this policy had an adverse affect on you. 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 that 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? Under the DCHRA, your employer's practices that have a discriminatory effect on women and which would otherwise be prohibited are not illegal if your employer can justify them by "business necessity." Your employer can prove business necessity by showing that, without the practice, business cannot be conducted. A discriminatory practice CANNOT be justified by any of the following:
(1) increased cost to business;
(2) business efficiency;
(3) comparative characteristics of women as opposed to men (e.g., that men are stronger than women);
(4) the stereotyped characterization of women as opposed to men (e.g., that women are more inclined to quit work to raise a family); or
(5) the preferences of co-workers, employers, customers, or any other person. What could my employer do to deny my allegations, and how do I respond to their denials? Though your employer does not have to deny your allegations, it will likely try to provide a legitimate nondiscriminatory reason for why you were treated differently. For example, it could claim that height and weight requirements serve a legitimate business purpose, and it is only an unfortunate consequence that these requirements adversely affect you. In response you will need to persuade the trier of fact (i.e. the D.C. Commission on Human Rights, judge, or jury) that your employer's reason is a pretext or a cover-up and that sex discrimination was the true reason. Does it matter when the discrimination occurred? To come under the protections of the DCHRA you must file a complaint within one year of the unlawful discrimination. To learn more about how to file a complaint with the DCOHR or a private lawsuit in a D.C. court, visit What Does the Law Say? If I prove my disparate impact claim, what kind of remedies am I entitled to? You may be entitled to equitable relief, which is non-monetary relief intended to make you whole again, including but not limited to injunctive relief to correct your employer's discriminatory practices or reinstatement to any position that you lost as a result of discrimination. Additionally, you may be able to recover monetary relief, such as back pay to compensate you for lost earnings and front pay to compensate for a pay differential resulting from discrimination. To learn more about the remedies that you may be entitled to under the DCHRA, visit Remedies Return to Types of Discrimination Return to D.C. Law PageLegal GlossaryReturn to States
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