When we talk about unlawful discrimination in the workplace, we usually talk about disparate treatment, in which an employer intentionally treats some workers differently because of their race, sex, religion or other protected characteristics. However, disparate treatment isn’t the only type of discrimination recognized under Kentucky and federal law.
Some cases in employment law involve another type of discrimination known as disparate impact discrimination. In these cases, an employer practices a policy that appears on its face to be applied equally to everyone, but has an effect that unfairly falls hardest on certain workers because of their protected characteristics.
The discrimination in these cases may have been intentional or it may have been entirely unintentional. What matters is that the policy had a discriminatory effect.
For an example of disparate impact, imagine a company that adopts a new policy saying that all new hires must be at least 6 feet tall. On its face, this policy seems to apply equally to all job applicants. However, men are much more likely than women to be 6 feet tall or taller. Under the new policy, very few women receive job offers. Within a few months, it becomes clear that all new employees are men.
The results show that the policy has had a disparate impact on women because they are women. Sex is a protected characteristic.
We’ll return to this example later in this post.
Intentional or unintentional
In disparate impact cases the plaintiff does not have to prove that the employer’s motive was discriminatory. This is important for plaintiffs because it isn’t easy to get inside an employer’s head and present evidence of what they were really thinking.
That said, the employer’s true motivations can be important in these cases. An employer can defend against a disparate impact claim by proving that it had a valid, nondiscriminatory business reason for the policy.
To return to the example of a height requirement, imagine that a group of women has filed a discrimination claim against the employer, arguing that the height requirement has had a disparate impact on women because of their sex.
Here’s where the employer’s motivation comes in. In its defense, the employer argues that the height requirement was necessary because its employees’ job duties require them to access boxes on tall shelves.
In such a case, a court might look at the women’s evidence and decide that they are correct about the disparate impact. Next, it must determine whether the employer has a valid, nondiscriminatory business reason for the height requirement.
This example is imaginary, but it’s easy to see how a court might accept that reaching high shelves is necessary for the job. However, it could also find that it would be easy for the employer to provide step ladders or another reasonable accommodation that could make it easier for workers under 6 feet tall to access the boxes. If so, then the plaintiffs would likely win their case without ever having to prove that the employer intended to discriminate against women.