Employment discrimination can occur even where an employer is not motivated by discriminatory intent. Under the concept of “disparate impact” an the employer is prohibited from using a facially neutral employment practice that has an unjustified adverse impact on members of a protected class.
Adverse impact is also known as an unintentional form of discrimination, which occurs when identical standards or procedures are applied to everyone, despite the fact that they lead to a substantial difference in employment outcomes for the members of a particular group and they are unrelated to success on a job. An important thing to note is that adverse impact is not illegal. Adverse impact only becomes illegal if the employer cannot justify the employment practice causing the adverse impact as a “job related for the position in question and consistent with business necessity” It is also important to know that adverse impact is not the same as disparate treatment. Disparate treatment refers to the “intentional” discrimination of certain people groups during the hiring, promoting or placement process.
Proving a disparate impact claim, on the other hand, requires showing that some neutral policy or practice had an adverse effect on a protected class. An employer can counter the proof of disparate impact by establishing that the challenged policy or practice was job-related for the position in question and consistent with business necessity. Here is how the allocation of proof works:
Prima facie case: The plaintiff must prove, generally through statistical comparisons, that the challenged practice or selection device has a substantial adverse impact on a protected group. See 42 U.S.C. 2000e-2(k)(1)(A)(i). The defendant can criticize the statistical analysis or offer different statistics.
Business necessity: If the plaintiff establishes disparate impact, the employer must prove that the challenged practice is “job-related for the position in question and consistent with business necessity.” 42 U.S.C. 2000e-2(k)(1)(A)(i).
Alternative practice with lesser impact: Even if the employer proves business necessity, the plaintiff may still prevail by showing that the employer has refused to adopt an alternative employment practice which would satisfy the employer’s legitimate interests without having a disparate impact on a protected class. 42 U.S.C. 2000e-2(k)(1)(A)(ii).
