Most employers know that intentionally discriminating against workers on the basis of their race, sex, religion or other protected characteristics is illegal. It has been this way for many years. This kind of discrimination still happens more often than it should in American workplaces, and there are still many legal disputes over intentional discrimination. However, employment discrimination doesn’t necessarily have to be intentional to be illegal.
An important legal theory known as “disparate impact” allows workers to hold employers responsible for illegal discrimination without having to prove that the employer’s discriminatory practice was intentional. Instead, the workers must prove that an employer’s policy has a greatly outsized effect on one group of workers because of their protected status.
A textbook example of disparate impact involves an employer who requires all employees to be 5 feet 9 inches tall or taller. The company announces that it will not hire any new workers shorter than 5 feet 9 inches and that no existing employees under that height will receive a promotion.
On its face, this policy looks like it applies evenly to all workers, but in practice, it has a disparate impact on certain types of workers because of their protected status. In particular, it affects women more than men because women are less likely to meet the height requirement.
The employer may have created the policy in order to reduce the number of women employees. Alternatively, they may have had some other reason for the policy and never thought about the effect it would have on women.
Intentional or not
Disparate impact theory is important for a number of reasons.
For one, it makes it much easier for the plaintiff to make their case. Evidence of intent is often difficult for plaintiffs to find. As we noted above, employers know they’re not supposed to intentionally discriminate against workers, and so they may know better than to create a paper trail showing that’s what they were doing.
For another, oftentimes employers truly do not realize that their policies are discriminatory. Sometimes they are just unaware of how the policies will affect their employees. Disparate impact theory helps workers hold these employers accountable so that they can make American workplaces better for more types of workers.