Disparate Impact Claims


My employer’s policies disadvantage women more than men.


What does disparate impact mean?


"Disparate impact" refers to a policy which at first glance seems neutral, but which disproportionately harms women. You may hear such policies referred to as "facially neutral," which literally means that the policy does not mention women "on its face," but yet the policy disproportionately harms women in practice.


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


You may be able to allege that any "facially neutral" employment policy or practice has a disparate impact on women. Most commonly, job qualifications or promotion criteria have been challenged under a disparate impact theory. Aptitude or physical strength tests might also be open for a disparate impact challenge, providing such tests have a disproportionate affect on women.


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


To prove that your employer has a policy or practice that impacts women differently from men, you must show all the following the elements:
1. You have identified a particular employment practice or policy, and your employer’s use of it;
2. You can demonstrate that the policy or practice has a disparate impact on women; and
3. You can demonstrate a "causal connection" "between the identified practice and the disparate impact."


You must show that your employer’s practice discriminates against women in practice. You do not need to show that your employer intended to discriminate against women. You do, however, have to present evidence that the employment practice at issue has an adverse impact on women in the workplace. Generally, if you show that your employer engages in an employment practice or policy that causes a disparate impact on women, and your employer is unable to rebut your assertion by showing that the practice at issue is "job-related for the position in question or consistent with a business necessity," then you can proceed with a disparate impact claim.


What is the difference between disparate impact and disparate treatment?


Whereas "disparate impact discrimination" is disguised as a "facially neutral" policy or practice, "disparate treatment discrimination" refers to a policy or practice that explicitly targets women in the workplace. In proving a disparate impact claim, there is no need to prove an intent to discriminate.


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


Yes, in some circumstances, it may be perfectly legal for your employer to treat or impact women differently. Texas law permits such practices if your employer can prove that the practice does not intentionally violate state law or if the practice is "justified by business necessity." Additionally, Texas allows gender to be a bona fide occupational qualification (BFOQ). In other words, your employer may be able to show that gender is a necessary qualification for a given job (i.e. a weight, height, or strength requirement). To do so, your employer must show that being a woman is both "reasonably related to the satisfactory performance" of the job and that there is a "factual basis" to believe that no woman would be able to "perform the duties of the job with safety and efficiency."


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


Your employer will have an opportunity to produce evidence that the discriminatory practice or policy is justified by a business necessity. The court in analyzing your employer’s evidence must consider 1) whether your employer’s policy or practice truly is justified by business necessity and 2) whether your employer could achieve its stated purpose through alternative means that would not have such an impact on women. Ultimately, regardless of what your employer says, the judge or jury must believe your evidence of disparate impact for you to prevail.


What evidence will support my claim?


For your claim to survive, you "must conduct a systematic analysis" of your employer’s discriminatory practice or policy, and that analysis must show that the practice or policy at issue causes a significant difference between women and men in your workplace. The most appropriate evidence you can bring to support a disparate impact claim is statistical evidence that demonstrates how women have been treated differently than men in your workplace. Such statistical evidence may be difficult to come by. Your attorney may need to hire an expert statistician to compile and analyze the statistics. Courts, however, have scrutinized such statistical evidence to a high degree.



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