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In our last post, we began looking at some of the basics of how discrimination looks in the workplace, from a legal perspective. As we noted, there are two basic categories of illegal discrimination: disparate treatment and disparate impact. We’ve already pointed out that disparate treatment refers to situations where the employer has a racial motive in making an employment decision.

Disparate impact is different in that it involves situations where the employer may not have had a racial motive, but nevertheless established, implemented or administered a workplace policy or procedure which had a discriminatory effect on workers based on race, or some other protected characteristic. Disparate impact can apply to criteria used in any aspect of employment, including: recruitment; hiring and promotion; layoffs and termination; appearance and grooming standards; education and experience requirements; and employment tests. Any one of these sets of sets of criteria can potentially have a discriminatory effect, whether intended or not. 

While statistical analysis can potentially play a role in disparate treatment claims, it is always an important aspect of making a solid claim for disparate impact. Demonstrating disparate impact involves a series of burdens of proof which shift back and forth between the parties, the first of which belongs to the plaintiff.

First of all, Title VII of the Civil Rights Act of 1964 requires statistical demonstration that the specific workplace practice or policy in question caused a significant disparate impact based on race or another protected characteristic. If a plaintiff is able to demonstrate this, the employer has the opportunity to prove that the practice is job-related and based upon business necessity. If the employer is successful in so proving, the plaintiff then has the opportunity to demonstrate that a less discriminatory alternative exists which meets the business need, but that the employer failed to adopt it.

Those who feel they have been subjected to racial discrimination in the workplace should get in contact with an experienced attorney to receive guidance about the process for seeking relief. This process begins with filing a complaint with the Equal Employment Opportunity Commission. We’ll pick up on this topic in a future post.