Recognizing Disparate Impact Discrimination in the Workplace

Discrimination in employment can occur when a facially neutral policy or practice has a disproportionate adverse effect on members of a protected class, even though the policy does not explicitly target anyone based on personal characteristics such as race, ethnicity, religion, age, gender, sexual orientation or disability. This is known as disparate impact discrimination, and it is illegal.

Disparate impact discrimination can arise in various aspects of employment, such as hiring practices, promotion criteria, layoffs and setting of job requirements. If an employee bringing a claim under the Law Against Discrimination (LAD) establishes that an allegedly neutral policy has a disparate impact on a protected class, the burden shifts to the employer to demonstrate that the policy is “job-related and consistent with business necessity.” 

These are examples of employer actions that could constitute disparate impact discrimination:

• Use of standardized tests in hiring or promotion that disproportionately screen out candidates from particular races or ethnic groups
• Setting physical fitness requirements, such as passing a strength test or being of a minimum height, that disproportionately exclude women or older workers
• Requiring a minimum level of education that has not previously been needed, such as advanced degrees that were not widely available when older employees were in school

An employer claiming the practice or policy in question has a valid, nondiscriminatory purpose must show that it is essential to achieving a substantial, legitimate economic interest. For example, a business might demonstrate that a particular test accurately measures skills essential for the job or that a certain level of specialized education is needed to perform a new job effectively. However, even if the employer proves a valid business purpose, the employee may still prevail by showing that there is a less discriminatory alternative that the employer could adopt.

If you suspect that disparate impact discrimination was behind an employment decision, such as your being passed over for a promotion or being laid off, you can file a complaint with the New Jersey Division on Civil Rights (DCR) and/or pursue a lawsuit in court. An experienced New Jersey employment discrimination attorney can advise you about the viability of a disparate impact discrimination claim in your case. Available remedies may include reinstatement, back pay, compensatory damages for emotional distress and punitive damages in cases of particularly egregious conduct. Additionally, the LAD allows for recovering attorneys’ fees and costs.

At Deutsch Atkins & Kleinfeldt, P.C. in Hackensack, New Jersey, we have the experience and resources to take on claims of discrimination by individuals from all protected classes and against employers of all sizes. To schedule your confidential consultation, call 551-245-8894 or contact us online.