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Disparate Impact Discrimination

Federal and state employment laws such as Title VII of the Civil Rights Act of 1964 prohibit intentional discrimination against people on a number grounds, such as their race or gender. But employment practices that have no discriminatory intent, yet have a disproportionately negative impact on protected classes of individuals are said to have a disparate impact and are still prohibited by law, with some important exceptions. Still, this means that a given practice may discriminate against a given group even if the employer had no intention of doing so.

Disparate impact discrimination is a legal theory first recognized by the courts. In addressing a Title VII discrimination case, the U.S. Supreme Court said that the burden of proof shifted to the employer once the employee (past or present) or job applicant was able to prove that a particular employment practice caused a disparate impact on their protected class. The Civil Rights Act of 1991 later amended Title VII, clarifying that once an employee establishes the existence of a disparate impact from an employment practice, the employer must then prove that such practice is "job-related for the position in question and consistent with business necessity."

Lawsuits based on the disparate impact theory often stem from layoffs, pre-employment skills testing, or other employment-related actions that impact a wide sample of individuals. The first U.S. Supreme Court case addressing the issue involved a company's high school diploma requirement for screening labor applicants. Although the employer was not acting intentionally, this requirement excluded a substantially higher number of African-American applicants than it did Caucasians.

Proving discrimination on the basis of disparate impact is generally difficult, especially since there is no single specific threshold or test. Therefore, each claim is decided on a case-by-case basis and may require considerable statistical analysis. Age-related disparate impact discrimination cases are often even more difficult because different laws apply to protect individuals from discrimination on the basis of age. Under these laws, employees can still establish age discrimination on the basis of a disparate impact, but the law provides more leniency to employers defending their practices.

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