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The unintentional discrimination of disparate impact

Every so often, a company has a policy that may be subtly, but clearly, discriminatory -- even if there was no discriminatory intent in the first place.

A classic example is when a police department puts a physical fitness policy in place and requires everyone who applies to the department to pass it in order to get hired. That policy, by itself, isn't inherently discriminatory: It doesn't make any difference who takes the physical fitness test, the test is always the same: The applicant has to complete an obstacle course in under three minutes.

However, in practice, the obstacle course includes a strength test that disproportionately affects women applicants more than it does men. Only very few women are able to pass that part of the test -- or maybe no women at all -- even though some very physically fit women have tried.

Upon closer examination, someone thinks to ask, "Why is this test important to the job?"

Sure, a police officer who is physically strong is more intimidating than a petite woman, but an effective police officer shouldn't have to resort to brute power.

Looking further, someone might question why older officers -- those who can't pass the strength test because of bad backs and the perils of age -- aren't immediately taken off the streets.

The reality is that the test seems to treat everyone the same. However, in practice, it's discriminating against women.

It would be nice to think that all policies like that are put into place unintentionally and, as soon as management is notified of the problem, are immediately removed.

However, the sad reality is that some companies intentionally design tests or tasks in order to weed out a subset of applicants. For example, if a company only advertises its job offerings on Facebook, it may be trying to weed out anyone under 35 intentionally.

Disparate impact policies are a form of workplace discrimination. If you realize that you are being discriminated against due to an arbitrary policy or procedure, it's wise to consider your legal options.

Source: FindLaw, "Disparate Impact Discrimination," accessed Dec. 08, 2017

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