HR Basics: Disparate Impact

Disparate impact is discrimination that occurs when an employment practice results in members of a protected class being treated less favorably than members of a non-protected class even though discrimination was not intentional. Disparate impact occurs when a company uses an employment practice that unintentionally discriminates against members of a protected class.

Anti-discrimination law protects the right of people to be treated equally. The primary objective of antidiscrimination legislation is to ensure that individuals are given equal opportunity in the workplace. A protected class is a group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic. These traits are called “protected characteristics” and referred to as “protected classes.”

Federal protected classes include: Race, Color, Religion, National origin, Sex, Age, Physical or mental disability, Veteran status, Genetic information, and Citizenship. Disparate impact refers to employment practices that appear neutral but have a discriminatory effect on a protected group. Disparate impact may occur in hiring, promotion, training and development, transfer, layoff, and even performance appraisals.

A useful way to think about the difference between disparate treatment and disparate impact is that disparate treatment focuses on the treatment of a particular person or group of persons within a protected class, and explicitly considers the motivation for the company’s actions. Disparate impact, on the other hand, focuses on the consequences of the employment practices.