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Sex or Gender Discrimination Claims in New Jersey Based on Disparate Impact

Some forms of sex or gender based harassment are obvious, such as a male supervisor repeatedly making unwanted sexual advances toward an employee.  Other forms of gender discrimination are far more insidious, however, because they are not as open and obvious.  Disparate impact gender discrimination provides a notable example since these cases are based on policies that on their face are gender neutral.

How does disparate impact differ from disparate treatment discrimination?

A disparate impact gender discrimination lawsuit involves an employer policy that appears to avoid discrimination in its literal terms but impacts men and women differently.  Frequently, legal claims of gender discrimination based on a disparate impact will involve employment exams or hiring criteria that adversely affect one gender.  These policies will look like they are based on objective criteria and will not mention either male or females because both sexes will be subject to the screening requirement.

An obvious example of a policy that may violate the New Jersey Law Against Discrimination in terms of its disparate impact on female employees might include minimum height and weight qualifications.  While the policy may appear facially neutral, the average physical traits of men and women may result in substantially more women being negatively impacted.  Disparate impact claims also differ from disparate treatment cases because the employer may not be motivated by animus or bad motives toward female employees.

Employer obligation to establish a bona fide occupational qualification

Once an employee establishes that a policy or job requirement has a disparate impact on one’s pay, promotion, benefits, promotion, retention or hiring, the employer must prove the requirement or criteria is a bona fide occupational qualification (BFOQ).  A BFOQ is essentially a legitimate justification for the policy, such as the need to lay off employees because of economic conditions.

Even if the employer is able to establish that the policy or eligibility criteria is based on a BFOQ, the employee will still have the opportunity to show that there is an alternative approach that would accomplish this objective without the discriminatory impact.

When a female employee is subject to gender or sex discrimination based on company policy or eligibility requirements, the worker should seek prompt legal advice.  A claim under the New Jersey Law Against Discrimination must be initiated before the New Jersey Division on Civil Rights within six months, and the statute of limitations for filing a lawsuit is two years.

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Neil H. Deutsch
Senior Partner

About Neil H. Deutsch has been practicing law for over 35 years and is known as a skilled negotiator in employment and discrimination law. He believes in a bottom-line approach of risk analysis and cost effectiveness for his clients. "Case evaluation is something we take seriously," says Mr. Deutsch who seeks top net dollar for…

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