While some workplace discrimination is overt or direct, illegal discrimination also includes instances of indirect or disparate impact discrimination. This type of discrimination can be more difficult to identify and address because it is frequently facially neutral but still has an indirect discriminatory impact against specific protected classes of applicants or employees. Here is some information from the attorneys at Swartz Swidler about indirect or disparate impact discrimination.
What Is Disparate Impact or Indirect Discrimination?
Indirect or disparate impact discrimination occurs when an employer has created a policy, practice, or rule covering all employees that results in a disadvantage for members of a protected class. To qualify as unlawful discrimination, the disadvantage must occur because of the affected employees’ protected characteristics, including their age, race, gender, disability, national origin, citizenship status, color, religion, sexual orientation, gender identity, or others.
When a rule or policy negatively impacts members of a protected group because of their characteristics, the policy or rule might be unfairly discriminatory.
Facially Neutral
For a disparate discrimination claim, the policy or rule must be facially neutral. This means that it applies to every employee and does not target those with protected characteristics. However, despite the fact that the policy or rule does not target a specific protected group on its face, it still places members of that class at a particular disadvantage in relation to other employees outside of that group. It must also have similar negative effects on all members of the protected class who share the same protected characteristic. Disparate impact discrimination claims are not warranted when a policy does not affect most members of the protected class.
Evidence of the disparate impact of a policy or rule might include the following:
- It is generally known.
- It is supported by statistics.
- Experts can testify about research demonstrating the needs of members of the protected group.
To have a claim, the policy or rule must currently affect you and cannot be something that happened in the past or something that might occur in the future.
Direct vs. Disparate Impact Discrimination
Direct discrimination occurs when members of a protected group are subjected to worse treatment than members outside of the group because of their protected characteristics, their perceived protected characteristics, or their association with others who have protected characteristics. By contrast, indirect or disparate impact discrimination occurs when people within a protected class are disadvantaged by an employer’s policy or rule.
The rule or policy in question must apply to everyone and can include any practice, procedure, or rule. A rule might also apply to everyone working within a certain group such as all salespeople and etc. Disparate impact discrimination can be more difficult to identify.
Justification
Employers can defend against disparate impact discrimination claims by showing that they have objective reasons to justify their allegedly discriminatory policies. They can do this by showing that their policies were necessary and reasonable to achieve a legitimate purpose. This means that a policy that might seem to be discriminatory might be justified when it is necessary to maintain the normal and effective operations of the business when there are no reasonable alternatives.
Examples of Disparate Impact Discrimination at Work
Disparate impact discrimination might cause people to face potential termination when their protected characteristics prevent them from being able to comply with their employer’s policy. It can also cause members of a protected class to have less favorable employment conditions, enjoy fewer opportunities or benefits, have fewer opportunities for transfers or promotions, reduced access to training, and other problems. Some examples of how disparate impact discrimination might affect employees and applicants with different protected characteristics are included below.
Example of Disparate Impact Discrimination Based on Religion
A company announces a policy that all employees must work at least one Saturday every month. A Jewish employee tells his manager that he cannot work on Saturdays because it is against his religion. The manager threatens to fire him if he will not comply. This policy is an example of disparate impact discrimination because it applies to all of the employees but has a disparate impact on those who are Jewish.
Example of Disparate Impact Discrimination Based on Pregnancy
A company has a company-wide policy through which employees are given points for daily attendance, and the total points earned are tied to regular bonuses. A female employee who is pregnant must take off from work to attend prenatal appointments with her doctor. When it is time for the bonuses to be given, she is told that she does not qualify because she took off time to attend her appointments and missed accumulating the points as a result. This policy is indirectly discriminatory since it applies to all employees but places pregnant female employees at a disadvantage as compared to others.
Example of Disparate Impact Discrimination Based on Sex
A company is hiring for an open position. In its advertisement, it states that only people who can lift a specific amount of weight can apply. This type of policy might be discriminatory because it can screen out women from applying for the positions. However, if the employer can show that there is an objective reason without a reasonable alternative for having this rule, it might not be considered to be discriminatory. For example, if the position involves lifting and loading heavy packages repeatedly throughout the day in a warehouse, the employer might be able to justify the weight requirement. By contrast, if there are alternatives available, including using forklifts and assistive weight-loading devices, the policy might be considered unfairly discriminatory.
Get Help From Swartz Swidler
Disparate impact or indirect discrimination can be difficult to identify since employers do not write the policies with the intent to discriminate against members of a protected class. However, when a general rule or policy has a disparate impact on people with certain protected characteristics, it can be challenged. To learn more about your rights, contact Swartz Swidler today at (856) 685-7420.
