Disparate Impact
Disparate impact is a discrimination theory in which a workplace policy that looks neutral on its face has a disproportionately negative effect on a protected group. The employer's intent is not part of the case. The plaintiff focuses on the numbers and the policy itself.
KEY TAKEAWAYS
- Disparate impact targets neutral-looking policies that disproportionately harm a protected group; intent is not part of the case.
- Framework comes from Griggs v. Duke Power (1971) 401 U.S. 424 and is codified at 42 U.S.C. §2000e-2(k); FEHA mirrors it at Gov. Code §12940(a).
- Plaintiff identifies a specific practice and shows statistical impact; employer must then prove job-related business necessity.
- Even after business necessity, the plaintiff still wins by showing a less-discriminatory alternative that the employer refused to adopt.
The framework comes from Griggs v. Duke Power Co. (1971) 401 U.S. 424, which struck down a high-school-diploma requirement that screened out Black applicants at a far higher rate than white applicants without being shown to predict job performance. Title VII codified the framework at 42 U.S.C. §2000e-2(k). FEHA recognizes disparate impact at Gov. Code §12940(a).
The plaintiff has to identify a specific employment practice and show statistical evidence of impact. The employer then has to prove the practice is job-related and consistent with business necessity. If the employer clears that, the plaintiff can still win by showing a less discriminatory alternative existed and the employer refused to use it.
Example: A regional bank uses a credit-score cutoff to screen teller applicants. The HR director defends the practice as predicting "reliability." Statistical evidence shows the cutoff disqualifies Black and Latino applicants at roughly twice the rate of white applicants. Without proof the cutoff actually predicts teller performance, the policy fails the business-necessity step and supports a disparate-impact claim under Title VII and FEHA.
Filing window: 300 days with the EEOC, three years with the CRD under Gov. Code §12960. A California employment discrimination lawyer can pull the statistical analysis a disparate-impact case requires.
From our practice: Disparate impact cases live and die in the statistical record. We bring labor economists in early to test screening criteria, credit cutoffs, physical-ability tests, and personality assessments before discovery closes. A policy that looks rational on paper can fail a four-fifths-rule analysis once the actual applicant pool gets crunched. Employers rarely run that math before adopting the policy, which is what creates the exposure.
Attorney Advertising. Page reviewed by David M. Safvati, CA Bar #326605. This advertisement is the responsibility of Westview Law PC.
