Also known as: disparate impact claims · disparate-impact claim · disparate impact · adverse impact claim
Written by attorneys · grounded in primary & secondary sources — see below
A statutory claim alleging that a facially neutral employment practice produces a disproportionate adverse effect on members of a protected class. The plaintiff establishes a prima facie case by showing that the employer uses a particular employment practice that causes the disparate impact on one of the prohibited bases.
Delilah Duran applies for a state administrative position but loses to a less qualified male veteran under a facially neutral hiring preference for veterans. The preference produces a statistical disparity against women applicants. Because the policy was adopted to reward military service rather than to exclude women, Duran cannot prevail on an equal protection claim.
Daniel Diaz, a gay applicant, is rejected after Dynamic Solutions applies a neutral policy requiring all employees to have previously held a traditional opposite-sex marriage. The policy produces a disparate impact on gay applicants. Diaz brings a disparate impact claim alleging the practice violates Title VII protections.
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Deborah Dunn and other minority firefighters score well on a promotion exam but the city discards the results because of racial disparities in pass rates. Dunn files a disparate impact claim asserting that the city's refusal to certify the results rests on an unlawful employment practice.
Doris Duffy and other female employees at Dover Bank challenge a neutral scheduling policy that disproportionately limits advancement opportunities for women with childcare responsibilities. The class alleges the policy constitutes an unlawful employment practice under a disparate impact theory.
David Dawson, an older police officer, sues the city after a neutral pay-raise formula based on years of service produces lower raises for older officers. Dawson asserts a disparate impact claim under the ADEA alleging the formula adversely affects older workers.
Darius Dixon challenges his employer's neutral family-leave policy that provides more generous benefits to new mothers than to new fathers. Dixon files a disparate impact claim alleging the policy produces an unlawful adverse effect on male employees.
A plaintiff must show that the employer uses a particular employment practice that causes a disparate impact on a protected group. The employer then bears the burden of demonstrating that the practice is job related and consistent with business necessity.
No. Under the Equal Protection Clause a facially neutral policy producing a racial or gender disparity violates the Constitution only if the plaintiff also proves discriminatory purpose.
The employer may defend by proving that the challenged practice is job related for the position in question and consistent with business necessity.
Yes. A facially neutral preference for veterans does not violate equal protection merely because it disproportionately disadvantages women when the purpose is to benefit veterans rather than to discriminate against women.
…their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that…