In some California workplaces, employment policies that are implemented might not have been written or implemented with any intent to discriminate, but when they are put into practice, they have a disparate impact on certain protected groups. These types of policies are said to cause disparate impact discrimination and, as such, are also legally forbidden.
A legal theory first established by the courts, disparate impact discrimination often results from employment practices such as pre-employment testing, layoffs and other similar widespread employment practices. When they are implemented, the practical effect of these policies result in a negative impact on the members of a protected class.
Disparate impact discrimination is generally more difficult to prove than allegations of intentional discrimination. The initial burden of proof is on the employee to show that the employment practice caused a disparate impact. Once proven, the burden then shifts to the employer, who may try to prove that the practice is a business necessity and job-related for the particular position. If an employer is able to prove that, the disparate impact claim will could be dropped.
Some employment policies may result in a disparate impact on a particular class of people, resulting in unintentional workplace discrimination. Proof that a policy has had a disparate impact can be very difficult, often involving extensive statistical analysis. People who believe a particular employment policy caused a negative impact on their protected class due to national origin, race, gender, age, disability or religion may wish to consult with an employment law attorney. An attorney may be able to assist his or her clients by filing the civil complaint and subpoenaing the employer’s related employment data in order to conduct a statistical analysis of the effect of the practice. If the data demonstrates a disparate impact, multiple affected class members may wish to file a class action lawsuit.
Source: FindLaw, “Disparate Impact Discrimination“, December 05, 2014