What Is Disparate Impact Discrimination?
A civil rights lawyer weighs in on a lesser-known aspect of discriminationBy Ross Pfund | Reviewed by Canaan Suitt, J.D. | Last updated on August 10, 2023 Featuring practical insights from contributing attorney Anna P. Prakash
Use these links to jump to different sections:
- Not all Illegal Discrimination is Intentional Discrimination
- Discriminatory Intent versus Discriminatory Effect in the Hiring Process: An Example
- Disparate Impact Cases in Employment Policy and Beyond
- Find an Employment Law Attorney with Experience in Discrimination Cases
Federal and state anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964, prohibit employment discrimination on the basis of race, color, religion, national origin, or sex.
Some types of discrimination are more easily recognizable than others. If an employee is fired and there’s a smoking-gun comment about their race, gender, or disability, it’s easy to see that potentially illegal discrimination was at play.
However, some forms of discrimination aren’t as commonly understood—particularly in instances where the discrimination isn’t necessarily intentional. Even though it may be subtler to recognize, unintentional or adverse impact discrimination is also prohibited under the law.
Not all Illegal Discrimination is Intentional Discrimination
“I think we can all recognize that there are systems set up in the world we live in that do not benefit everyone and that disadvantage certain groups,” says Anna P. Prakash, a civil rights and class action attorney with law firm Nichols Kaster in Minneapolis.
“I believe that historic and systemic racism and sexism are just built into certain systems, and that, depending on the circumstances, may result in policies or practices that could constitute illegal disparate impact discrimination against people of color, women, or people in other protected groups.”
Prakash adds, “In other words, a neutral policy or practice that can have a disproportionate and adverse effect on a protected group of people.”
Discriminatory Intent versus Discriminatory Effect in the Hiring Process: An Example
There’s an important distinction in discrimination law between “disparate treatment,” which is intentional, and “disparate impact,” which is unintentional.
For example, imagine a business—such as a retail store or restaurant—where there are positions in which driving is not a job duty. Maybe the position is for a waiter or a cashier. What if that employer had a policy of not hiring job applicants who have a driving record with a certain number of reports on it?
At first, it might seem like there’s nothing objectionable about that employment policy since it’s not intentionally or explicitly discriminatory against people in particular groups.
However, says Prakash, “Where people of color are being stopped at higher rates in traffic stops, you might think to yourself: Well, since this job has nothing to do with driving, that hiring policy could have a disparate impact on people of color as a result.”
Disparate Impact Cases in Employment Policy and Beyond
While the theory of disparate impact discrimination is not new, much of the case law remains in the context of employment law and similar areas.
For example, the Equal Employment Opportunity Commission (EEOC) lays out the three-part disparate impact analysis that courts use to determine if employment discrimination has occurred. This analysis arises from the Supreme Court’s landmark disparate impact discrimination case, Griggs v. Duke Power Co.:
- The plaintiff must show that an employment practice has a statistically significant adverse impact on a particular group within a protected class;
- In response, the employer must justify that employment practice by showing that it is job-related or significantly furthers an important business necessity;
- If the employer succeeds in justifying the employment practice, it may still be discriminatory if the plaintiff can show that there’s a less discriminatory alternative.
Though this analysis arises from an employment court decision, that doesn’t mean discrimination can’t come into play in other areas.
“I think litigating it in other areas of law is possible,” says Prakash. “I think there are laws where it is recognized and laws where it is not. For example, one law protecting consumers might recognize a disparate impact theory of liability, and another might say you must show something overtly intentional in order for the plaintiff to have a claim. It depends on the law, and it depends on the context in which the person is being discriminated against.”
Find an Employment Law Attorney with Experience in Discrimination Cases
If you believe you’ve been discriminated against as a member of a protected class, a knowledgeable attorney with experience in disparate impact lawsuits can help you consider your options.
“A lawyer is going to be the person that is most able to give someone who is being discriminated against advice on whether something is both unfair and illegal, or simply unfair,” Prakash says.
“Unfortunately, there are a lot of ways in which people can be treated terribly in the marketplace as a consumer or on the job as an employee that would not necessarily be illegal… But still, think about what people face in purchasing goods and services; getting credit; going to school; dealing with court fines and fees; dealing with healthcare; as well as in employment. I think that there can be opportunities to make those circumstances fairer for everyone.”
For more information on discriminatory practices, such as disparate impact claims for employment discrimination, see our overview on discrimination law. To find an attorney with experience defending civil rights and employment discrimination claims in your area, search the Super Lawyers directory.
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