Don’t Get in Trouble for Disparate Impact Policies

Many employers get in trouble for discriminatory hiring practices, even though they never intended to or wanted to discriminate. How does this happen? It’s because of disparate impact policies.

The End is What Matters

Disparate impact policies can be hard to grasp because they focus on the end result–is the end result of a policy, discriminatory, even if the policy itself is not? That is, even if the policy seems neutral on its face and is applied fairly to all applicants?

Examples of Disparate Impact

As an example, let’s imagine that you were hiring for a job, but the job requires being able to reach on high shelves and take packages down. You figure this would be easier to do for taller people, so you will only hire people who are 5-8 or taller, and you know there is no law that prohibits hiring on height alone.

That policy seems fair. Height is not a protected class. You’ll hire anybody of any gender, age, race, religion or nationality, so long as they meet the height requirement. It seems like you’re doing the right thing.

But what is the end result of that hiring policy going to be? It’s going to end up with you hiring way more men than women, because statistically, more men are above that height than women are. The end product of that policy is discriminatory, and thus, the policy has a disparate impact.

As another example imagine you are hiring people, but to find applicants, you only advertise in colleges and universities. That sounds fair, but the end result is that your policy keeps the job opening away from the eyes of older applicants, who largely are not in college, and thus, your employee pool is all younger people–not by accident or chance or luck, but by a policy that you implemented.

A Large Impact

Disparate impact has to have a discriminatory affect on a large number of applicants. So, although a single employee can bring a disparate impact discrimination claim, proving the claim requires showing statistically that the policy being challenged has a discriminatory effect, and that means an analysis of many hiring actions, over a longer period of time, to see what effect the policy seems to have.

The government does have an 80% rule, which says that if a policy results in minorities or protected classes getting a certain job less than 80% of the time, the policy is likely discriminatory–but courts don’t automatically have to follow that.

BFOQ Defenses

Like any discrimination claim against an employer, an employer can claim that the policy is a bona fide occupational qualification, or BFOQ. So if, for example, a job required extensive computer skills, you could only hire people with computer experience–even if that policy resulted in more young than older workers being hired.

Call our West Palm Beach business litigation attorneys at Pike & Lustig to help you.

Sources:

home.ubalt.edu/shapiro/rights_course/Chapter9text.htm

prevuehr.com/resources/insights/adverse-impact-analysis-four-fifths-rule/