Disparate Impact Claims

 

My employer’s policies disadvantage women more than men.

 

a. What does disparate impact mean?

 

b. What is a facially neutral policy?

 

c. What kinds of claims can be brought as a disparate impact claim?

 

d. I think that a company policy adversely affects me because of my gender, how do I prove it?

 

e. What is the difference between disparate impact and disparate treatment?

 

f. Are there times when an employment policy or practice may legally impact women different than men?

 

g. Does it matter when the discrimination occurred? (New window to WDTLS)

 

h. What options do I have if I my employer has fewer than 6 employees? (New window to WDTLS)

 

i. If I prove my disparate impact claim, what kind of remedies am I entitled to? (New window to Remedies)

 

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a. What does disparate impact mean?
Disparate impact cases involve situations where an employer’s policy or practice, though not specifically based on sex, adversely affects one sex more than the other. A good example of this is company leave policies. Imagine that an employer has a policy that allows paid short-term leave for employees who have surgery, but the employer doesn’t allow paid maternity leave – this could be a case of disparate impact discrimination because the policy, while technically gender-neutral, has a harsher affect on women than men.

 

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b. What is a facially neutral policy?
A facially neutral policy is one that does not explicitly, in its terms, differentiate between men and women. For instance, a policy that requires job applicants to be able to lift seventy pounds in order to be hired might have the effect of disqualifying most women, but because the policy itself does not mention gender, it is considered to be neutral.

 

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c. What kinds of claims can be brought as a disparate impact claim?
Any situation in which you feel that a company policy affects you negatively, or more negatively than men, could result in a disparate impact claim.

 

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d. I think that a company policy adversely affects me because of my gender, how do I prove it?
To prove disparate impact, you must: show the existence of a facially neutral policy or practice that causes a "statistically discernable disparate impact on a protected employee group." Unlike in cases of disparate treatment, you do not have to prove that your employer intentionally discriminated against you based on your sex. In addition, disparate impact cases are traditionally proven by statistical evidence, rather than circumstantial evidence.

 

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e. What is the difference between disparate impact and disparate treatment?
In a disparate treatment claim, you are treated differently because of your sex. In a disparate impact claim, your employer engages in practices that "appear neutral in their treatment" but affect one group more harshly than another.

 

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f. Are there times when an employment policy or practice may legally impact women different than men?
If your employer can advance a legitimate business necessity that justifies the discriminatory practice or policy, then your employer may have a defense against a claim of disparate impact discrimination.

 

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