Diversity, disparate impact, and discrimination pursuant to Title VII of US civil rights laws: A primer for management

While the words diversity, disparate impact, and discrimination are commonly read and heard by working adults and professionals, they can at times be confusing and fearful to some managers. The purpose of this paper is to provide an overview of a specific aspect of US civil rights laws – the disparate impact theory. The authors provide an analysis based on the statute, case law interpreting, and applying the statute, administrative guidelines from the Equal Employment Opportunity Commission, as well as legal and management commentary. The paper illustrates the requirements of a plaintiff employee’s initial case based on the disparate impact theory. The challenging causation component which requires some degree of statistical evidence is given particular attention. Limitations to the paper are stated at the beginning; and recommendations to managers are explored and provided toward the end of the paper.

It is a legal paper which covers all the laws related to discrimination based on disparate impact and disparate treatment theories. Actual court cases up until this month and Americans laws related to this concept are reviewed and critically discussed.

The salient feature of disparate impact is that this legal theory allows a plaintiff job applicant or employee to sustain a case of illegal discrimination without providing any evidence of a discriminatory motive. As opposed to the disparate treatment liability is imposed based on disproportionate adverse results and not discriminatory intent.

This paper deals with the disparate impact theory pursuant to Title VII of the Civil Rights Act. However, it must be pointed out that the disparate impact theory is also applicable to claims arising under the Americans with Disabilities Act and the Age Discrimination in Employment Act. Since the focus of this paper is Title VII federal and state constitutional issues, such as the applicability of the 14th Amendment’s Equal Protection clause that may arise in disparate impact cases involving government entities will not be addressed.

Managers and employees can protect themselves in the workplace from illegal discriminatory practices. Initially, employers and managers must be aware of the distinction between a disparate impact case and a disparate treatment case with the latter requiring evidence of intentional discrimination. Evidence, of course, can be direct or circumstantial or inferential. Whereas in a disparate impact case there is no intentional discrimination; and as such proof of discriminatory intent is not required. Rather, the employee has to present evidence that the employer’s neutral on-its-face employment policy or practice caused an adverse disproportionate impact on the employee as a member of a protected class.

Human resources professionals and managers must become educated in diversity laws in order to provide an inclusive workplace for all employees and candidates. Employers have legitimate areas of concern in hiring and promoting employees; and the courts are cognizant of employer responsibilities; and thus the employers must be able to show how specific knowledge, skills, education, training, backgrounds, as well as height, weight, strength, and dexterity are legitimate qualifications that directly relate to successful job performance.

This is an original paper by the authors.