Disparate Impact Claims


What does disparate impact mean?


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


What is a facially neutral policy?


A facially neutral policy is one which does not explicitly discriminate against women, but rather appears to be objective. Often this will take the form of a test or employment requirement that applies to men and women equally, but has the practical effect of excluding women from jobs, promotions, or other benefits.


What does disparate impact look like?


Disparate impact may be occurring if you notice that your employer is hiring, promoting, or benefiting significantly fewer women than men. If there is a policy in place which has the effect of "weeding out" women who are otherwise qualified, and the policy does not appear to be relevant to the job, this is likely a case of disparate impact.


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


Some of the most common types of disparate impact claims are failure to hire and failure to promote claims. In these claims, the employer's policy for hiring or promoting disadvantages women. Other examples of disparate impact claims may relate to pay increases, pregnancy, transfers, training programs, leadership programs, and firing policies.


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


To establish a case of employment discrimination under the disparate impact theory, you must show:
(1) that a particular job requirement or selection or promotion process selects applicants for hire or promotion in a pattern significantly different from that of the relevant pool of applicants;
(2) that discrimination is more than an occurrence of isolated, accidental, or sporadic discriminatory acts; and
(3) that discrimination is your employer's standard practice. Statistical evidence may be used and may be sufficient by itself to establish such a case.


What is the difference between disparate impact and disparate treatment?


The main difference between disparate treatment and disparate impact is the intent of your employer. Disparate impact involves a policy which your employer may not have intended to be discriminatory, but which nonetheless affects women more negatively than men. Disparate treatment, on the other hand, involves action by your employer which is explicitly intended to discriminate against women, such as separate pay scales for men and women.


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


Yes, an employer may discriminate on the basis of sex if sex is a bona fide occupational qualification (BFOQ). A BFOQ is an employment qualification that, although it may discriminate against women, is legally legitimate as long as it is reasonably necessary to the operation of the particular business. If an employer is looking for a male actor to play a male character in a performance, then searching exclusively for men for the job would be a bona fide occupational qualification. Your employer may choose to have a seniority system in place at work, but the system must not impact women in an adverse way.


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


Your employer can respond by proving that the policies at issue are "job related," i.e., that they have a significant relation to the job in question. If your employer proves the essential relation between their selection of employees and job performance, you can respond by supplying other methods which would serve your employer's legitimate interests without resulting in disproportionate discrimination against women.


Does it matter when the discrimination occurred?


Yes. You must sign and file a verified complaint in writing with the Missouri State Human Rights Commission ("the Commission") within one hundred eighty (180) days of the alleged act of discrimination. For more information, please see What Does the Law Say.


What options do I have if I my employer has fewer than 6 employees?


If your employer has fewer than six (6) employees you may not sue under the Missouri Human Rights Act. However, you may have other options. For more information, please see What Does the Law Say.


If I prove my disparate impact claim, what kind of remedies am I entitled to?


You may be entitled to injunctive relief or monetary damages. For more information, please see Remedies.


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