Employment discrimination is not always straightforward and obvious. Sometimes, an employer will institute a new workplace policy that appears “neutral” on its surface. However, a policy that applies equally to everyone can still create legal problems when it disproportionately affects employees in a protected class.
This is called disparate impact discrimination. Unlike intentional or overt discrimination, disparate impact focuses on the real-world consequences of an employment practice, not the motive (or alleged motive).
What does disparate impact look like?
Essentially, whenever a workplace policy or practice affects members of a protected class – such as those of a particular race, sex, religion, age or disability – more than it affects others in the workplace, that’s disparate impact.
Sometimes, the uneven effect is entirely intentional and those of a specific class are being targeted. In other cases, the policy may have been adopted for legitimate business needs and the discrimination is unintentional – but it is still discrimination.
For example, situations that can give rise to disparate impact include things like:
- Using pre-employment aptitude or physical ability tests that are not closely related to the essential functions of the job.
- Imposing minimum height or strength requirements that disproportionately exclude women or certain ethnic groups when those standards are unnecessary.
- Requiring employees to work schedules that unnecessarily conflict with religious obligations when reasonable accommodations are available.
- Requiring applicants to pass a personality assessment that screens out individuals with certain disabilities when the measured traits aren’t essential to the work.
- Implementing “English-only” workplace rules that are broader than necessary for safety or business operations.
- Using attendance policies that fail to account for protected medical leave or reasonable accommodations for disabilities.
- Applying grooming policies that disproportionately affect certain racial or religious groups without a legitimate business justification.
- Prohibiting head coverings without making reasonable exceptions for religious practices when safety is not at issue.
- Using algorithmic hiring software or artificial intelligence tools that unintentionally favor one demographic group because of biased training data or selection criteria.
It’s important to remember that not every restrictive policy is unlawful. Employers can still apply certain standards that are necessary to their business operations. However, employees who believe that they have been unfairly targeted – intentionally or not – should seek legal guidance.