Examining Disparate Impact

There are two main legal theories of discrimination: disparate treatment and disparate impact. Disparate treatment is what we typically think of when we think about discrimination. Disparate treatment occurs when a decision-maker intentionally treats members of one group differently from members of another group. Disparate impact, on the other hand, focuses not on the intent of the decision-makers, but the criteria they use. In a disparate impact claim, the intent of the decision-maker is irrelevant. Disparate impact exists when a facially-neutral policy or practice has different effects on different groups. It’s important to note that disparate impact is not in-and-of itself illegal. Under the Civil Rights Act, disparate impact is prohibited only if the employer cannot demonstrate that the employment practice creating the adverse impact is job related and consistent with business necessity. In this week's installment of The Proactive Employer Podcast, we'll be discussing how to examine questions of disparate impact. We'll talk about how the questions are typically framed, the kinds of data and documentation needed for an analysis, and factors to consider when constructing the study population.