| Under Title VII it is unlawful for an employer to discriminate against an employee or applicant on the basis of basis of sex, race, color, religion, and national origin. This means that employers may not fire, refuse to hire, demote, or take other adverse employment action against an employee or applicant because of his or her sex, race, color, religion, or national origin.
If a plaintiff can prove in a federal court that a Title VII violation has occurred, he or she may be eligible for back pay, reinstatement to a lost job, attorney fees, or other forms of relief. Plaintiffs may prove illegal discrimination in one of two ways: proof of disparate treatment (often referred to as intentional discrimination) or proof of disparate impact. This article details the requirements for proving a disparate impact claim.
The United States Supreme Court has stated that disparate impact discrimination occurs when employment policies or practices that are fair in form are discriminatory in operation. To prevail on a disparate impact claim, an employee or applicant need not prove that the employer intentionally discriminated against him or her because of his or her sex, color, race, religion, or national origin. Instead, the plaintiff must show that the seemingly neutral policy or practice had a disproportionately harsh impact on persons of one race, sex, religion, or national origin.
The Supreme Court has set forth a three-step process for proving a disparate impact claim.
1. The employee or applicant must establish a prima facie case of disparate impact discrimination. This simply means that the plaintiff must prove that one of the employer's policies or practices impacted his or her sex, religion, race, or national origin more severely than it impacted others.
Example: Applicant shows that a preemployment screening test he failed disproportionately excluded many more black applicants from employment eligibility than white applicants.
2. Once a prima facie case has been established, the employer must come forward with evidence either that the alleged disparity does not exist or that the challenged practice is job related for the position in question and that it is consistent with business necessity.
Example: Employer asserts that the preemployment screening test helps to ensure that employees have the skills that are required to perform the job. Employer details the costs of hiring an employee who is then unable to perform the job for which he or she was hired.
3. If the employer sets forth a business justification for the discriminatory practice, the plaintiff may attempt to show that the employer's practice is not job related or that an alternative practice exists that does not have the same discriminatory effect.
Example: Plaintiff shows that the test, which includes complex math and English questions, has no applicability to the assembly line position for which he applied. A simple matching test would have determined whether the applicant had the ability to select products from the assembly line with sufficient timeliness.
Once the parties have both come forward with evidence, it is for a jury to decide whether a legitimate business justification existed for the challenged practice or whether another practice could have eliminated the discriminatory intent. Copyright 2010 LexisNexis, a division of Reed Elsevier Inc. |