Proof in disparate impact cases
In a disparate impact
case, the issue is not whether the employer intended to discriminate, the issue
is whether a particular business practice results in discrimination -- even if the
employer did not intend to discriminate.
For example, let's assume
that the town fire department requires job applicants to be able to drag a large fire hose
100 yards within a certain amount of time. Let's further assume that female job applicants
fail this test more often than male job applicants.
If a female job applicant
(who failed the test) sues for gender discrimination under a disparate impact theory, the
first question will be whether a statistical analysis of the applicants reveals that the
physical agility test results in a disproportionate number of men being hired.
If so, then the test is
having a disparate impact on female job applicants. But this is not the end of the
analysis.
The employer can avoid
being held liable for disparate impact discrimination if it can show that the employment
practice (in this case, a physical agility test) is a business necessity.
For example, if the fire
department can show that its firefighters must be able to carry a fire hose the equivalent
of 100 yards within a certain time during the actual performance of their duties, then the
test might be a business necessity.
But if this test requires
strength and agility well beyond what a firefighter needs in the real world, then the test
is likely not a business necessity and the fire department will be held liable for
disparate impact discrimination.
However, with respect to ADEA disparate impact cases,
please read the article Introduction to the Age Discrimination in Employment Act
(ADEA) because the U.S. Supreme Court announced
a different test in 2006 for those claims.
Proof in denial of substantive right
cases
In these cases, the
intention of the employer is not relevant. For example, it does not matter whether the
employer intended to disallow an employee medical leave under the Family and Medical Leave
Act. The only issues are whether the employee was entitled to take the leave and if so,
whether the employer provided the leave. If the employee was not
provided the benefit to which he or she is entitled by
law, then there has been a violation of the law
regardless of whether the employer intended to violate
the law or not.
Conclusion
Other articles will
provide introductory information on particular types of discrimination claims (age,
disability, family and medical leave, national origin, pregnancy, race, religious and
gender). But this article gives you the necessary foundation to understand what is being
discussed in these other articles.
