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What is disparate impact?

You probably understand what discrimination means, but disparate impact is a term that fewer people in California have heard. Disparate impact is a type of unintentional discrimination against a particular group of people, and it is illegal for a company to do it.

According to FindLaw, disparate impact is when employment practices have no specific intent to discriminate but they negatively impact a protected group of people, and that minorities and women are often the ones whom this type of discrimination affects. Actions by an employer that may indicate disparate impact include practices such as skills testing during the hiring process and layoffs.

It is easier to prove direct discrimination against a specific gender or race as opposed to proving disparate impact. There is no set standard to measure an employer's intent, so each disparate impact claim requires statistical analysis and other fact presentation. This makes it challenging to prove, but a knowledgeable and experienced attorney understands how to present the data in an effective way.

The American Bar Association outlines some tips that employers can follow to avoid costly disparate impact claims. These include:

  • Offer opportunities for promotion to a variety of employees
  • Make sure requirements and hiring processes tie to operational goals
  • Recruit from diverse groups of applicants
  • Use quantifiable metrics to make decisions regarding hiring and promoting
  • Regularly analyze the workplace and notice areas in which diversity lacks

In a disparate impact claim, an employer may justify an employment practice because it meets the goals of the business or is a necessity. The plaintiff may still win if a proposed alternative solution can show it is as effective as the current practice.

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