3.08 Disparate Impact is a legal concept that refers to the situation where a seemingly neutral practice results in different outcomes based on a person’s protected characteristics. It is a form of indirect discrimination which can be seen when a policy appears to be neutral on the surface, but has a disproportionate impact on certain individuals in a protected group, such as those of a particular race, disability, or gender. There are two types of disparate impact: disparate treatment and disparate impact. Disparate treatment refers to a policy or practice that is intentionally implemented in a discriminatory manner, while disparate impact refers to a policy or practice that unintentionally or unintentionally has a discriminatory result.
3.08 Disparate Impact
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FAQ
Disparate impact claims can be filed by employees working for public or private employers. For example, a 2006 case implicated the practices of a private employer involving pre-employment strength tests. These tests were discriminatory and resulted in a disparate impact on women.
The disparate impact test ? the 80% rule The 80% rule was first published in the State of California Guidelines on Employee Selection Procedures in October 1972. Ever since it became a common rule in companies to ensure fair representation of protected minorities.
To establish an adverse disparate impact, the investigating agency must (1) identify the specific policy or practice at issue; (2) establish adversity/harm; (3) establish significant disparity; 9 and (4) establish causation.
Example of disparate impact: hiring more men than women as construction workers as a result of physical height or strength (unintentional discrimination).
A common and simple example of ?disparate impact? discrimination is when an employer has a policy that it will only hire individuals who are a certain minimum height or who can lift a certain minimum weight. Courts have found height restrictions disproportionately impact women and certain races.
For an applicant to say they were a victim of intentional discrimination ? disparate treatment ? he or she has to show they were treated unfairly based on race, color, religion, sex or national origin. If the applicant can't show there was intent, it would be disparate impact.
Disparate impact occurs when seemingly neutral policy or practice negatively impacts people of a protected class. Unlike disparate treatment, disparate impact can be unintentional, but that doesn't mean it isn't unlawful employment discrimination.
So, what is disparate treatment discrimination then? Simply put, disparate treatment discrimination is when an employer outright treats an employee or a potential employee differently because of that person's race, religion, color, sex, national origin, etc.