The Trump administration recently announced that it would stop paying state and local agencies to investigate claims of “disparate impact” discrimination in the workplace. Although this doesn’t necessarily mean the end of disparate impact discrimination law, the new federal policy could discourage state and local agencies from investigating and pursuing legal action in these claims.
Disparate impact explained
When most people think about unlawful discrimination in the workplace, they may think of a bigoted employer mistreating employees with racist or sexist language, or openly refusing to hire job applicants simply because of their religion. There are still many cases where the discriminatory intent is blatantly obvious, but the truth is that most workplace discrimination cases are more subtle. In some cases, the employer may not even realize that their new workplace policy is illegally discriminating against some workers. This is the theory behind disparate impact.
In disparate impact discrimination cases, an employer has a policy that looks neutral on its surface, but which in practice illegally discriminates against certain groups of people.
A textbook example might involve a requirement that all new employees be at least 5-feet 11-inches tall. Because men are, on average, taller than women, and most women are under 5-feet 11-inches tall, this requirement would result in more men than women being hired. Thus, a policy that appears neutral on its face has a discriminatory impact against women based on their sex.
A group of women who applied and were rejected for positions with the company could go to the state Equal Employment Opportunity Commission, or EEOC, to get help pursuing a claim that the employer’s policy amounts to unlawful discrimination. They would not have to prove that the employer intended the policy to discriminate against women, only that the policy did in fact have a discriminatory impact.
To successfully defend against the claim, the employer would have to show that it had a legitimate business reason for the height requirement. For instance, if all employees might need to reach a high shelf in the course of their work, and there was no reasonable way to provide a step stool or other accommodation, this could be a valid defense.
The new federal policy
State and local agencies in Florida and all over the country have investigated and pursued many disparate impact claims over the years. Often, they have done so with financial assistance from the federal EEOC. But under the new policy, the federal government will not provide this backing.
It’s too early to say what effects this new policy will have, but it could potentially have a profound impact on disparate impact cases and anti-discrimination law in general.