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What is the Disparate Impact Theory?

By Dan Atkerson on September 25, 2015

Group of Multiethnic Diverse Business PeopleDiscrimination in the workplace is everywhere, but it isn’t always intentional. There are occasions when a company policy, which employers may have intended to be neutral, affects one of the federally protected classes more negatively than others. This is called disparate impact.

Griggs v. Duke Power Company

One of the best examples of disparate impact comes from the very first case in 1971, Griggs v. Duke Power Co. Soon after the implementation of Title VII of the Civil Rights Act of 1964, which is what protects employees from discrimination, many employers began exploiting a loophole.

Duke Power Company had been intentionally segregating its work force before Title VII. It only allowed African Americans to work in its labor department, where the highest pay was less than the lowest pay in the other departments. After Title VII, Duke Power implemented a policy that required any employee seeking to be hired or transferred into a department other than labor to either have a high school diploma or pass two separate IQ tests.

African American employees at Duke Power filed a lawsuit claiming discrimination, and the courts eventually agreed, saying the "absence of discriminatory intent does not redeem employment procedures or testing mechanisms that operate as 'built in headwinds' for minority groups and are unrelated to measuring job capacity." Since the IQ tests had no discernable impact on the ability to perform the job, they were determined to be illegal.

Proving Disparate Impact

The plaintiff in a disparate impact case bears the responsibility of convincing the court that the policy or procedure in question do in fact discriminate against one or more of the classes protected by Title VII. This is usually done by showing that the percentage of those in a protected class that are selected for a job or promotion is proportionally smaller than the percentage of that class that applied.

If the plaintiff proves disparate impact, then the employer must show that the practice falls under business necessity, meaning that the practice is job related and necessary for the operation of the company. They must also show that there is no alternative procedure that would not be discriminatory.

It is important to have an employment attorney on your side in a disparate impact case, or any other discrimination case. Contact Dan A. Atkerson if you feel your employer is using a discriminatory procedure and he can help to make it right.

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