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.
Note: To 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.