Employers and employees must understand all rules and restrictions governing the employee/employer relationship. Some of the most important employment laws affecting the rights of workers and the obligations of employers include laws prohibiting discrimination. Not only do anti-discrimination laws preclude employers from overtly treating employees unfairly if they are members of a “protected class,” but anti-discrimination laws can also prohibit various forms of unintentional discrimination as well.
One example of discrimination which could be unintended by an employer, but which could still have profound consequences, is called disparate impact discrimination. Employers must be aware of the definition of disparate impact discrimination and should take steps to try to ensure they do not leave themselves vulnerable to Equal Employment Opportunity Commission (EEOC) investigations or civil claims.
Disparate impact discrimination can occur if an employer imposes a job-related condition or a job-related requirement of any sort if that requirement or condition impacts a protected class in an adverse way. The job-related terms or conditions that are imposed by an employer could involve pre-employment testing, or testing that an employee must undergo to receive a raise or to receive a promotion.
If the testing or the job requirement imposed by an employer intentionally or unintentionally disqualifies more of a particular protected group, this could result in a discrimination claim. Many employees are part of a protected class. For example, discrimination is prohibited on the basis of race, religion, gender, national origin, disability status, and advanced age (being over 40). If a man is discriminated against because he is a man, then he is part of a protected glass due to the fact his gender was the source of his discrimination. In most cases, the protected classes who are discriminated against are women or members of minority groups.
There are many different kinds of job-related tests and conditions that could constitute disparate impact discrimination because of the impact of the tests. For example, men tend to be stronger in comparison to most women. If an employer imposed a pre-employment test of physical strength and the test favored men because of their strength, this could be an example of disparate impact treatment against women. If an employer imposes a requirement that employees must have a college degree and the company operates in a location where significantly fewer members of a particular minority group have a degree, this could also be considered disparate impact discrimination.
Employers can face legal consequences for disparate impact discrimination only if there is no legitimate bona fide reason for the testing or condition that is having the discriminatory effect. For example, if the pre-employment strength test required a candidate to lift 40 pounds or more but this test was put into place because the job is loading a delivery truck that requires routinely lifting 50 pound items, then the test would not generally be considered unlawful discrimination even if more women than men would likely be disqualified on the basis of the testing.