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Avoiding disparate impact discrimination claims

On Behalf of | Sep 15, 2021 | Employment Law For Employers

As an employer, you’re bound to face a lot of employment law issues, any one of which could be costly to your firm’s finances and reputation. That’s why it’s imperative that you’re proactive in protecting your business, but that’s easier said than done. By taking a holistic approach, though, you can more fully protect yourself from allegations of wrongdoing, such as discrimination. Be aware, though, that not all discrimination that you seek to prevent is blatant. In fact, some discrimination may be alleged to be unintentional, which is why you need to closely look at every aspect of your business to determine how best to protect your business.

A glimpse at disparate impact discrimination

One lesser-known type of discrimination is disparate impact discrimination. Here, seemingly neutral policies and practices are found to have a disproportionate impact on individuals of a protected class. Many employers are accused of engaging in disparate impact discrimination without ever realizing it until they are hit with statistics that show how the policy in question has impacted the relevant class.

In fact, that’s how many plaintiffs try to show disparate impact discrimination. They gather evidence of how the policy has been implemented, how it has personally affected them, and the percentage of other employees in the protected class who have been impacted in comparison to other employees. In some instances, a court will look to see if the selection rate for the protected class is less than 80% of other classes. If so, then it can be considered evidence of discrimination.

But are there any defenses even if the statistics aren’t in your favor?

Defenses to allegations of disparate impact discrimination

Even if the facts don’t look to be in your favor, you might have strong defense options at your disposal. One of the best amongst them is business necessity. Here, you basically agree that the policy has a disparate impact but that the policy is necessary for the business to operate. For example, heavy lifting is oftentimes necessary in warehouse work, so even if a policy requiring employees to lift a certain amount of weight disparately impacts women, it probably won’t be found to be discriminatory in nature.

However, even if you’re able to raise the business necessity defense, the plaintiff can still succeed in proving discrimination if it can show that other policies and practices would be just as effective and less discriminatory in nature. So, you need to be aware of alternative ways to address the issue at hand.

Proactive steps you can take

Ideally, you’d avoid disparate impact claims altogether by taking proactive steps on the front end. This would include that job requirements and policies are directly tied to business operations. You can also ensure that you’re being diverse in your hiring and promoting practices. Do your best to take subjectivity out of employment decisions, such as by using standardized score cards when it comes to making employment decisions. Also, be observant. If you see a lack of diverse characteristics anywhere in your business, ask yourself if that lack of diversity is due to any policies or practices that are in place.

Do what you can to protect your business

There’s a lot on the line in a discrimination case, regardless of whether the alleged discrimination is blatant or more hidden. For that reason, it’s crucial that you’re aware of how discrimination can arise in the workplace and what you can do to protect your business from such allegations. This means being proactive in every aspect of your business’s hiring practices so that you can avoid discrimination claims and effectively defend against them should they arise. If you’d like to learn more about what you can do to address discrimination issues, then please continue to research this area of the law.