Disparate Impact Claims


My employer’s policies disadvantage women more than men.


What does disparate impact mean?


Disparate impact means that there are policies or practices where you work that do not overtly treat women in a discriminatory way, but nonetheless have an adverse result or negative impact on women. These policies are often facially neutral, in that they don’t mention women specifically, but they harm women in practice.


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


Unequal pay, failure to promote, discriminatory hiring and firing can all be brought under a disparate impact claim.


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


You must show that the employment practices where you work have an adverse impact on women and not men. You do not need to prove that your employer intended to discriminate against women, but you do need to show that there is no business necessity for its employment practices or policies.


What is the difference between disparate impact and disparate treatment?


Disparate impact occurs when company policies or employment practices have an adverse effect on you because you are a woman. Disparate treatment, on the other hand, is more of a direct form of discrimination. It is when you are treated differently, because you are a woman. An important difference to note is that proof of a discriminatory motive, which is required in disparate treatment cases, is not required in disparate impact cases.


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


Yes, if there is a bona fide occupational qualification, employment practices may legally treat women differently than men. This is a legitimate reason for your employer to consider gender in a particular employment decision. If the policy in question is manifestly related to the job or significantly furthers an important business practice, it may qualify as a BFOQ and therefore be legal. An example of this would be weight or height requirements that would exclude most women, however, are necessary to complete certain tasks.


What could my employer do to deny my allegations, and how do I respond to its denials?


Your employer will most likely try to show that there is a legitimate, nondiscriminatory reason for the company policy in question. It could do this by showing that the practice is manifestly related to the job or significantly furthers an important business purpose. In order to win your case, you would need to show that your employer’s proffered reason is merely pretext or a cover-up for discrimination. It would be helpful if you could demonstrate that there is a comparable alternative employment practice to the one in question which would have less of an adverse impact on women.


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