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?
You must show that your employer's facially neutral policy adversely affects women. A common example of a facially neutral policy which adversely affects women are weight and height requirements that preclude women from being hired for a particular job, even though weight and height do not necessarily dictate the ability to function in that job.
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?
In rare instances, an employer's policy may legally impact women disproportionately. For example, if an employer has a six (6) month medical leave policy, that may negatively impact pregnant women who need extensive time off, but New Jersey courts have allowed it, as it impacts both men and women in the same way. An employer may also present a bona fide occupational qualification (BFOQ), or legitimate reason for discriminating. For example, an employer may be forced to lay off a number of employees due to changing economic circumstances.
What could my employer do to deny my allegations, and how do I respond to its denials?
Once you have shown that your employer's policies have a disproportionate impact on women, your employer has the opportunity to show that the policy in question is related to job performance, that is, that it is a BFOQ. If your employer is able to show that the policy is a BFOQ, you have a chance to then show that there is an alternative method or policy which could accomplish your employer's job-related purpose with a less discriminatory impact on women.
Does it matter when the discrimination occurred?
Under the LAD, you must file a claim with the New Jersey Division on Civil Rights within one-hundred and eighty (180) days of the discrimination. If you wish to bypass the Division, and file with the New Jersey Superior Court, you must file within 2 years of the discrimination. For more information on how to file a claim, href="../files/nj_file.shtml">click here.
What options do I have if my employer has fewer than fifteen (15) employees?
While you are only protected under federal law if your employee has more than fifteen (15) employees, under the LAD, you are protected regardless of how many employees your employer has. So while you may not be able to file a federal claim, your claim in New Jersey is still valid.
If I prove my disparate impact claim, what remedies am I entitled to?
You will be entitled to equitable relief, which is relief intended to make you whole again. You may be able to recover remedies such as back pay to compensate you for lost earnings, front pay to compensate for a pay differential resulting from discrimination, injunctive relief to correct your employer's discriminatory practices, or reinstatement to any position that you lost as a result of discrimination.
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