Disparate Impact. Disparate impact discrimination cases involve practices by the employer that are not openly racist on the outside, but that significantly impact one racial group more harshly than another without a legitimate business reason. For example, an police department may use a qualification exam that is passed by a majority of non-Hispanic applicants, but only a small minority of Hispanics. In disparate impact cases, it is a racial or ethnic impact rather than a racist motivation that is the heart of the case.

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Proving a Disparate Impact Claim. In general,  proving a disparate impact claim involves a multi-step process. First the employee must show, usually with statistics, that a particular practice of the employer has caused a significantly disparate impact on a specific racial or ethnic group. Then, the burden shifts to the employer to justify its practices by showing that they are “job related” and concerned with “business necessity.” In our hypothetical, the police department might argue that its exam relates directly to skills needed by police officers and is necessary to identify qualified candidate.

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If the employer is able to justify its practices, in the third stage, the employee must show that feasible alternative means are available to the employer to accomplish its goal with less of a discriminatory impact. For example, Hispanic candidates may show that a different exam is available which is just as good at determining a candidate’s aptitude for police work, but has similar pass rates for Hispanic and non-Hispanic employees.

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We Can Help. If a your employers practices are disproportionately impacting a particular group, we invite you to call us for a free in-person consultation at our New Jersey Offices to discuss whether you have a disparate impact case.  If we believe in your case, we will represent you on a contingent fee retainer, meaning we will not ask you for money up front, and will only get paid if and when we get money for you.

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