Jonah Patel
Disparate impact is a form of indirect, unintentional discrimination in which certain hiring, promotion, or employment decisions disproportionately affect members of a protected class. It is often evidenced by statistical disparities and can be the result of seemingly neutral policies or practices that have a more harmful effect on one group than another. In the United States, the concept of disparate impact has been recognized by the Supreme Court in the contexts of employment discrimination, housing discrimination, and age discrimination. To avoid disparate impact claims, employers should maintain consistent and transparent hiring practices, avoid asking about protected characteristics, and train hiring managers on implicit bias and equal opportunity laws.
| Characteristics | Values |
|---|---|
| Age | The Age Discrimination in Employment Act of 1967 prohibits discrimination against workers above 40 years of age. |
| Race | Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race. |
| Religion | Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion. |
| Sex and Gender Identity | Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex. |
| National Origin | Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on national origin. |
| Housing | The Fair Housing Act of 1968 allows for disparate impact claims to address discriminatory practices in housing. |
| Education | Courts have ruled that educational requirements that disproportionately exclude certain races or ages can constitute disparate impact. |
| Language | Failing to provide bilingual services for applicants or beneficiaries with limited English proficiency can constitute disparate impact. |
| Pay | Disparate impact can occur when pay raises favor less experienced employees over older ones. |
| Zoning Laws | Unlawful zoning laws that unfairly exclude minorities from certain neighborhoods can constitute disparate impact. |
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What You'll Learn
Employment discrimination
Disparate impact refers to practices that are discriminatory, and it usually occurs unintentionally. In the context of employment discrimination, it is a form of indirect discrimination in which certain hiring, promotion, or employment decisions disproportionately affect members of a protected class.
To establish a probable case of disparate impact, an employee must present evidence that an employer's neutral policy, rule, or practice has a disproportionate negative impact on members of a protected class. This could include objective criteria such as tests, degree requirements, and physical requirements, or subjective criteria such as performance, collegiality, or interview impressions. Statistical evidence is often used to demonstrate the discriminatory impact of a facially neutral policy or practice, although it is not a necessity.
In the United States, the Supreme Court has recognized disparate impact as a valid legal theory in three main areas: employment discrimination under Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act of 1967, and the Fair Housing Act of 1968. The Age Discrimination in Employment Act (ADEA) prohibits policies and practices that disproportionately harm older individuals, even if the harm was not intentional.
To avoid disparate impact in the hiring process, HR professionals should use consistent criteria for evaluating applicants, avoid asking about protected characteristics, document hiring decisions with clear justifications, train managers on implicit bias and equal opportunity laws, ensure job postings are inclusive, and treat applicants equally at every stage.
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Housing discrimination
The Fair Housing Act of 1968, enacted as Title VIII of the Civil Rights Act, plays a significant role in addressing housing discrimination. The Act prohibits discrimination based on race, colour, religion, sex, disability, familial status, and other characteristics. The US Department of Housing and Urban Development (HUD) is responsible for administering the Fair Housing Act and has issued regulations to address disparate impact claims.
In 2013, HUD introduced a three-pronged test to evaluate disparate impact claims. The test considers whether a policy, despite appearing neutral, has a discriminatory effect by resulting in a disparate impact on a group of individuals or reinforcing segregated housing patterns. If the policy is deemed necessary for achieving legitimate, nondiscriminatory interests, and there is no alternative practice with a lesser discriminatory effect, then it may be justified.
However, the application of the disparate impact theory in housing discrimination cases has been a subject of debate. In 2015, the US Supreme Court ruled in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc. that disparate impact claims are valid under the FHA. This decision affirmed that policies with an unjustified discriminatory effect could be challenged, even without proof of discriminatory intent. Subsequently, HUD revised its 2013 standard to align with the Court's ruling, providing further clarification on discriminatory housing practices.
The Biden Administration has also taken steps to address housing discrimination. In 2021, President Biden issued an executive order directing HUD to review its 2020 Fair Housing Act disparate impact standards, aiming to eliminate racial bias and other forms of discrimination in housing. This review process reflects the administration's commitment to promoting fair housing and redressing historical discriminatory housing practices.
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Racial discrimination
Disparate impact refers to practices that are discriminatory, and it usually occurs unintentionally. In the context of racial discrimination, it involves a neutral policy, rule, or practice that has a disproportionate negative impact on individuals based on their race or colour. This type of discrimination can be challenging to identify and prove, often requiring statistical evidence and data analysis to uncover unconscious prejudices and hidden biases.
In the United States, the Supreme Court has recognised disparate impact in three main areas: employment discrimination, housing discrimination, and education discrimination.
In employment discrimination, the Court's decision in Griggs v. Duke Power Company set a precedent for recognising disparate impact claims based on race under Title VII of the 1964 Civil Rights Act. This prohibits discrimination against employees based on race, colour, religion, sex, and national origin. For example, a company policy requiring a bachelor's degree for entry-level positions may disproportionately exclude minority applicants who face historical and systemic barriers to obtaining higher education.
Housing discrimination cases involving disparate impact have been recognised under the Fair Housing Act (FHA) of 1968. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, the Supreme Court upheld a disparate impact claim where government practices concentrated low-income housing in predominantly non-white communities, perpetuating housing segregation.
Education discrimination was recognised in Smith v. City of Jackson, where the Court found that a policy requiring high school completion disproportionately impacted Black employees due to the historical segregation in education, violating Title VII.
To establish a disparate impact claim, plaintiffs must demonstrate a causal connection between a specific policy or practice and the resulting statistical disparity. This involves presenting evidence of the disproportionate negative impact on a protected class, such as racial minorities. While statistical evidence is beneficial, it is not always necessary, as other factors such as history of state action, foreseeability, and discriminatory intent may also be considered.
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Age discrimination
Employment
The Age Discrimination in Employment Act of 1967 (ADEA) prohibits employment discrimination against people aged 40 or older. The ADEA addresses concerns about older workers being disadvantaged in retaining or regaining employment due to common employment practices unrelated to job performance. The act also prohibits intentional discrimination against older workers (disparate treatment) and policies or practices that, while neutral on the surface, disproportionately harm older workers compared to younger ones (disparate impact).
For example, consider a company that routinely uses sophisticated software to monitor race- and sex-based disparities but fails to similarly monitor age-based disparities. This company may be acting unreasonably and could be held liable for age discrimination with a disparate impact.
Housing
The Fair Housing Act of 1968 (FHA) and the Age Discrimination in Employment Act of 1967 have been interpreted by the US Supreme Court to create a cause of action for disparate impact claims related to age. This means that housing restrictions or policies that unfairly exclude older individuals from certain housing opportunities or create statistical disparities can be challenged under the disparate impact theory.
To prove a case of disparate impact housing discrimination, a plaintiff must establish a prima facie case, demonstrating a direct causal connection between a policy or practice and the disparate impact or statistical disparity.
In conclusion, a probable case of disparate impact due to age discrimination can arise in various sectors, including employment and housing. The legal framework, including the ADEA and FHA, provides protections against age-based discrimination and establishes the rights of older individuals in these contexts.
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Impact evidence
Disparate impact is a form of indirect, unintentional discrimination in which certain hiring, promotion, or employment decisions disproportionately affect members of a protected class. This includes race, sex, gender identity, age, disability, and other protected traits.
To prove disparate impact, plaintiffs must identify a "facially neutral policy or practice" that caused the discriminatory impact. This can be done through statistical evidence, which is often critical in these cases, although it is not always necessary. For example, in the case of Griggs v. Duke Power Company, the Supreme Court recognized disparate impact in the context of employment discrimination prohibited by Title VII of the 1964 Civil Rights Act. The Court noted that 34% of white men had finished high school, compared to only 12% of Black men, resulting in a policy that disparately impacted Black employees.
Similarly, in the case of Smith v. City of Jackson, older police officers successfully challenged pay raises that favored less experienced officers, constituting age discrimination. In another instance, Spanish-speaking food stamp beneficiaries alleged that state agencies continued a policy of failing to ensure bilingual services for applicants with limited English proficiency, constituting discrimination based on national origin.
To minimize the chances of causing a disparate impact, organizations should implement consistent and fair practices, use standardized questions, and ensure assessors have the skills to evaluate candidates fairly and objectively.
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Frequently asked questions
Disparate impact is a violation of substantive equality, or the equality of outcomes for groups. It occurs when a seemingly neutral action or policy has discriminatory results or consequences.
A disparate impact case occurs when a plaintiff can demonstrate a causal connection between a policy or practice and a discriminatory outcome or statistical disparity.
Disparate treatment is a violation of formal equal opportunity. While all anti-discrimination laws allow claims for disparate treatment, it is less clear which laws provide for disparate impact claims.
Griggs v. Duke Power Co. (1971) is a key example of a disparate impact case. The case found that a North Carolina employer's high school degree and aptitude testing requirements for certain higher-paying departments were unlawful because they disproportionately excluded African Americans. Another example is Texas Department of Housing and Community Affairs v. Inclusive Communities Project (2015), which allowed for disparate impact claims to be brought under the Fair Housing Act.
Some laws that address disparate impact include Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, the Fair Housing Act of 1968, and Title VI of the Civil Rights Act of 1964.
