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 engaged in a policy or practice that negatively impacted women and not men. Typically, disparate impact claims rely heavily on statistics and circumstantial evidence. Statistics showing the degree of disparity between women and men must be significantly discriminatory or markedly disproportionate. For example, say a given department in a company consists of only 10% female employees, yet the labor force which they draw their employees from is 60% female. Such a markedly disproportionate employment pattern could serve as the basis of a disparate impact claim. Although you do not need to show that your employer intended to discriminate, you must show that there was no legitimate business necessity for the policy or practice. For example, being male would be a legitimate business necessity for the job of a men's restroom attendant.


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, if there is a bona fide occupational qualification (BFOQ), employment policies or practices may legally treat women differently than men. If it is reasonably necessary for a male to perform certain business operations then the policy or practice may qualify as a bona fide occupational qualification and it will therefore be legal to prevent women from performing those business operations. In addition to BFOQs, there may be seniority or merit systems in place that disproportionately impact women. These are typically legal in most states; however, it is unclear from case law whether or not they are acceptable in Wisconsin.


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


Your employer could try and show that there is a legitimate business necessity for the policy or practice in question. It could do this by showing that the policy or practice is distinctly related to the job. You can rebut this defense by showing that there is an alternative practice that would accomplish the same goal without the discriminatory impact.


Does it matter when the discrimination occurred?


Yes, you must file a claim with the Wisconsin Equal Rights Division within three hundred (300) days of the discriminatory action.


For more information, please see What Does the Law Say?


Does it matter how many employees my employer has?


No, the WFEA applies to all employers regardless of the number of employees.


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 or monetary relief. However, remedies vary from case to case. For more information, please see Remedies



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