Disparate Impact - Unintentional Discrimination

Unintentional Discrimination

This form of discrimination occurs where an employer does not intend to discriminate; to the contrary, it occurs when identical standards or procedures are applied to everyone, despite the fact that they lead to a substantial difference in employment outcomes for the members of a particular group and they are unrelated to successful job performance. An important thing to note is that disparate impact is not, in and of itself, illegal. This is because disparate impact only becomes illegal if the employer cannot justify the employment practice causing the adverse impact as a "job related for the position in question and consistent with business necessity" (called the "business necessity defense").

For example, a fire department requiring applicants to carry a 100 lb (50 kg) pack up three flights of stairs. The upper-body strength required typically has an adverse impact on women. The fire department would have to show that this requirement is job-related for the position. This typically requires employers to conduct validation studies that address both the Uniform Guidelines and professional standards.

Disparate impact is not the same as disparate treatment. Disparate treatment refers to the "intentional" discrimination of certain people groups during the hiring, promoting or placement process.