What is Disparate Impact?

Disparate impact is a form of discrimination that involves a policy or practice that is not primarily motivated by a discriminatory purpose but has a discriminatory impact on a protected class of individual.

What is Required to Show Disparate Impact?

Unlike discriminatory treatment actions, in a disparate impact action the employee does not have to demonstrate an intent to discriminate.

Rather, the plaintiff must prove that the employers practices or policies had a discriminatory effect on her due to her race, gender, religion, etc.

The effect on the employee must be substantial and related to an identifiable disadvantage or a loss of opportunity.

Employers can defend such a claim by proving that the alleged discriminatory policies are job-related and based upon a business necessity.

That is, the employer must show that there was a bona fide occupational qualification to overcome the employers successful demonstration of a business necessity, the plaintiff must then show that other policies would serve the employers intended purpose without having a discriminatory effect or impact.

NoteTo prove a discriminatory impact case, the employee most generally provide extensive data and demonstrate statistically that the policy had an impact on anyone belonging to the employees protected class.

Jason M. Gordon

Member | Co-Founder Law for Georgia, LLC

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