Disparate impact in employment practices that negatively affect a protected class can result in violation of equal protection rules, leading to litigation, fines, and penalties. US civil rights laws protect minorities, disabled, and older Americans from discrimination in any aspect of work. Tests or qualifications that unfairly impact a protected class are not allowed, except for a bona fide professional need. Tests that demonstrate cultural bias or have a disparate impact on gender are illegal unless there is a professional need.
Disparate impact refers to employment trials or practices that adversely affect a protected class of individuals. Under civil rights law in the United States, qualifications and working conditions that have disparate impacts can result in a violation of equal protection rules. This can expose a business to potential litigation, fines and penalties.
There are many laws in the United States to protect minorities and individuals who have a long history of discrimination. For example, Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate in hiring, firing, or employment conditions on the basis of race, religion, sex, national origin, or color. Americans over the age of 40 find similar protection in the Age Discrimination in Employment Act (ADEA), and disabled Americans are protected by the Americans with Disabilities Act (ADA).
Because these civil rights laws prohibit discrimination in any aspect of work, from hiring to firing to promotions and everything in between, no tests or qualifications that unfairly impact a protected class of people are allowed. The only exception to this rule is if there is a bona fide professional need for the test that cannot be met in some way that does not create a disparate impact. The Equal Opportunity Commission and the judges or juries will decide on a case-by-case basis whether there is a good faith cause, but in general, the company must be able to demonstrate that the test was necessary to ensure the employee’s success at his or her job and that there was no other way to test that skill that didn’t negatively impact or favor one class or group of people over another.
There are several ways a test or job condition could have a disparate impact. For example, if there is a test in which Caucasians perform significantly better than African Americans in every situation, the test could demonstrate cultural bias. As such, the test could have a disparate impact and could therefore be a violation of EEOC regulations.
A test that requires people to lift heavy materials could have a disparate impact on gender. Therefore, such a test would only be permitted if the job involved the regular lifting of heavy objects. If the job were a desk job, there would be no bona fide professional purpose to administer it, and because it impacts women disparately, it would be illegal. For the plaintiff to prevail, she would have to demonstrate that the test had a materially negative impact on those in the protected gender class.
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