Disparate Effect

Disparate Effect - also known as disparate impact - is a legal concept in employment and civil rights law that refers to a facially neutral policy or practice that unintentionally causes a discriminatory impact on a protected group (for example, based on race, gender, age, or disability). Even if there’s no intent to discriminate, a policy may still violate laws like Title VII of the Civil Rights Act of 1964 if it leads to unequal outcomes.

Disparate effect cases focus on the consequences of employment practices, not the intent behind them.

Key Facts

• Legally Recognized Under Title VII: The U.S. Supreme Court formally recognized the concept in the 1971 case Griggs v. Duke Power Co., ruling that policies may be unlawful even without discriminatory intent.
• Facially Neutral Policies Can Still Be Discriminatory: For example, a physical strength test may seem fair, but if it disproportionately excludes women and isn’t job-related, it may result in disparate impact.
• Relies on Statistical Evidence: Disparate effect is typically proven through statistical data showing that a certain group is adversely affected at a higher rate than others.
• Employers Can Defend with “Business Necessity”: A policy that causes disparate impact may still be legal if the employer can show it is job-related and consistent with business necessity.
• Can Apply to Many Areas: Disparate effect may arise in hiring, promotions, training, layoffs, pay scales, or employee testing practices.

1. What is disparate effect in employment law?

It refers to a neutral employment policy that results in unintended discrimination against a protected group, even if there was no intent to discriminate.

2. How is disparate effect proven?

Usually through statistical analysis showing that a certain group is significantly more negatively affected by a policy than others, without a valid job-related reason.

3. What’s the difference between disparate treatment and disparate effect?

• Disparate treatment = intentional discrimination
• Disparate effect = unintentional but harmful outcomes from a neutral policy

4. Can a company avoid liability for disparate effect?

Yes, if it can prove the policy is based on business necessity and no less discriminatory alternative exists.

5. What’s an example of disparate effect?

A company requires all employees to pass a high-level written test that disproportionately excludes minority candidates and isn’t directly related to job performance - this may be unlawful disparate impact.