Home » Commentary » What Is “Disparate Impact” Discrimination, and Why Is It In the News Now?

Amanda DeMatteis: Hi, Josh.

Josh Goodbaum: Hi, Amanda. What are we talking about today?

DeMatteis: Thought we would talk about disparate impact liability, which is something that we use in proving employment discrimination cases. Recently, the Trump administration has said, “Hey, we’re not going to allow federal employees to use this concept of ‘disparate impact liability’ in proving discrimination claims anymore.”

As you can imagine, Josh, there has been quite a difference of opinion amongst Democrats and Republicans as to this recent move by the administration. Jenny Yang, who chaired the Equal Employment Opportunity Commission under President Barack Obama, has said, “This effort by the administration to remove this tool sets us back decades,” whereas the Trump administration is pushing back and arguing that disparate impact liability has handcuffed employers, requiring them to consider race and racial balancing to avoid legal liability, which they say is a threat to meritocracy.

Unpack this for us. Tell us what disparate impact is and how it could affect Connecticut employees.

Goodbaum: Let’s start with the difference between “disparate impact” and “disparate treatment.”

Disparate treatment is the theory that we think of in most discrimination cases. It is intentionally treating an employee differently because of their membership in a protected class – because of their race, their sex, their ability or disability, their sexual orientation, their religion, their national origin, etc.

Disparate impact is a different theory because it involves an employer’s facially neutral policy that, on its face, doesn’t distinguish between people based on their membership in a protected class but in application is discriminatory.

Imagine, for example, if the police department said, “We’re not going to hire anyone who is not at least 5 feet 10 inches.” That policy would have a disparate impact because we know that, on average, women are not as tall as men. So, that’s a policy that’s going to advantage men and disadvantage women, and so it’s gonna have a disparate impact along the axis of a protected category – namely, sex. A disparate impact isn’t necessarily illegal, but it can be illegal if the policy is unrelated to the job. So it might make sense to screen police officers for their height, but does it make sense to do the same for police department’s receptionists? I doubt it.

Now, I said that might make sense in a police department, but would it make sense at all in an accounting firm? Well, surely not. And so what you would infer from a policy like that is probably that the policy was intended to have a disparate impact, and that might then bleed into disparate treatment, so you can see these two things are not quite as distinct as they first appear to be.

Now, disparate impact liability as a theory has a history in this country. It grows out of a U.S. Supreme Court case from 1971 called Griggs v. Duke Power that involved a utility company down in North Carolina that imposed a requirement that all new employees in certain blue-collar jobs have a high school diploma or pass a particular test. And that policy had a disparate impact on the basis of race. White people were more likely to pass the test, and people of color were not as likely.

The U.S. Supreme Court said unanimously, in an opinion written by Chief Justice Burger, who was a Nixon appointee and quite conservative, that disparate impact liability is a valid theory of liability. If there’s disparate impact that the plaintiff can show through statistics, the business has to come forward and demonstrate that the policy is reasonably related to the job.

So, in the example of the police department, the police department would have to come forward and prove, “Yeah, actually height is reasonably related to the ability to work as a police officer.” Maybe the police department could do that, but the accounting firm almost certainly could not.

Now, through a series of cases and statutory changes, disparate impact liability became incorporated into federal civil rights law in the Civil Rights Act of 1991. Congress said, “Yes, we approve of disparate impact liability, and here’s how it’s going to work. The federal government can bring a claim for disparate impact liability against an employer, but a private plaintiff, a private employee, can also bring a disparate impact claim.”

What the Trump Administration has done in its executive order is to say the federal government is not going to bring these claims anymore. And that will undermine enforcement, because these claims are resource-intensive, they require statistical analysis, and so they’re the kinds of claims that are more often brought by the federal government than by private plaintiffs. But still, disparate impact is a viable theory under the Civil Rights Act of 1991 and under the laws of many states, including the laws of the state of Connecticut.

So, this is not doing away with disparate impact liability as a theory; it’s just undermining enforcement of disparate impact claims.

DeMatteis: But if you’re an employee in Connecticut right now, Josh, and you have a claim, and it relies upon disparate impact as a theory of liability. This executive order is not doing anything to change the potential significance of that claim or viability of?

Goodbaum: That’s correct, Amanda. If you are an employee in Connecticut or anywhere in the country, and you think you’re being subjected to a facially neutral policy that has a disparate impact along the lines of a protected category because it treats white people better than people of color or men better than women or any other different protected categories, you still have a claim. You would not want to bring that claim to the federal government right now because they’re saying they’re not gonna do anything about it, but you could go to a state government agency or you could go to a private employment lawyer.

DeMatteis: Excellent. Thank you so much for that information, Josh, and thank you for watching. Take care.

About the Author

Client Experiences

Advocating for Employees since 1977