Disparate-Impact Discrimination Policies and Litigation
Disparate-impact discrimination refers to policies, practices, or procedures that, while neutral in appearance, disproportionately affect members of a particular protected group, such as racial minorities, women, or those with disabilities.
As an experienced employment law attorney at Chris Sanders Law PLLC in Louisville, Kentucky, I'm dedicated to protecting your legal rights. I understand how disparate-impact discrimination can affect your experience at work, and I'm committed to defending you against unfair treatment.
Whether you're facing discrimination based on race, gender, age, disability, or any other protected characteristic, I strive tirelessly to make sure that your case is handled with the attention and diligence it deserves. That said, as your attorney, here's what you need to know about disparate-impact discrimination policies and litigation.
Disparate-Treatment vs. Disparate-Impact Discrimination
Disparate-treatment discrimination occurs when someone is intentionally treated unfairly based on a protected characteristic (such as race, gender, or religion).
Disparate-impact discrimination, on the other hand, refers to neutral policies, practices, or procedures that have an adverse effect on a specific protected group, even if there wasn't an intentional discriminatory motive.
Federal law, specifically Title VII of the Civil Rights Act of 1964, governs the most common disparate-impact discrimination claims in the workplace. Title VII prohibits employers from discriminating against employees or job applicants based on race, color, religion, sex, or national origin.
While disparate-treatment claims are based on intent, disparate-impact claims are based on the disproportionate effect a policy has on a protected group, even if there isn't intention to discriminate.
The U.S. Supreme Court first recognized the concept of disparate-impact discrimination in Griggs v. Duke Power Co., 401 U.S. 424 (1971).
In Griggs, the Court held that an employer's requirement for a high school diploma and certain intelligence tests, while not discriminatory at face value, disproportionately excluded African Americans from the workforce and were, therefore, unlawful under Title VII.
This landmark decision established that policies resulting in significant racial disparities could be discriminatory, even without proof of discriminatory intent. Further legal development occurred in Wards Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), where the Supreme Court narrowed the scope of disparate-impact claims.
The Court ruled that the burden of proof shifted to the plaintiffs to demonstrate that the employer's practices had a significant adverse effect on protected groups and that the employer couldn't justify the practice with a business necessity.
This ruling made it more challenging for plaintiffs to prevail in disparate-impact cases but was later mitigated by legislative amendments, such as the Civil Rights Act of 1991, which restored the broader applicability of disparate-impact claims.
Disparate-Impact Discrimination and Kentucky Laws
The Kentucky Civil Rights Act (KCRA) prohibits discrimination in employment, housing, public accommodations, and other areas based on:
Race
Ethnicity
Religion
Sex
Disability
National origin
Although the KCRA is largely modeled on federal civil rights laws, Kentucky has additional legal considerations in dealing with disparate-impact claims.
While Kentucky courts generally align with federal precedent, the state law provides specific nuances that can impact how disparate-impact claims are litigated. In Kentucky, claims of discrimination under the KCRA must be filed with the Kentucky Commission on Human Rights (KCHR) or filed directly in state court.
Once a claim is filed, the complainant must prove that the challenged practice has a significant disparate impact on the protected group in question. This is where working with an employment law attorney may be valuable.
The KCRA also allows for lawsuits based on disparate-impact claims in housing and public accommodations. Disparate-impact housing claims are especially relevant in Kentucky’s urban centers like Louisville, where housing policies and practices might disproportionately affect racial minorities and lower-income individuals.
Public accommodations, such as businesses and facilities, also come under the purview of the KCRA, which could result in disparate-impact litigation when seemingly neutral policies harm protected groups. However, employment law remains the primary arena for disparate-impact discrimination claims.
Disparate-Impact in Employment Law
In Kentucky, employment discrimination laws require employers to avoid policies or practices that disproportionately affect protected groups.
This is particularly significant in industries such as manufacturing, education, and healthcare, where seemingly neutral policies—such as hiring tests, educational requirements, or background checks—can have a disparate impact on minority groups.
For instance, if an employer in Kentucky requires all applicants to have a high school diploma as a condition of employment, and a significant proportion of Black or Hispanic applicants don't meet this requirement, then this policy could potentially create a disparate impact.
Under Kentucky’s laws, this policy could be challenged with the help of an employment law attorney if it's shown that the policy results in a significant disparity without being necessary for the job in question.
Employers in Kentucky, particularly large corporations, are advised to conduct thorough assessments of their hiring and promotion practices to determine compliance with both federal and state laws.
While some employers may have a legitimate business reason for certain policies (such as background checks or educational requirements), they must be able to show that these policies are directly related to the job requirements and aren't unnecessarily discriminatory.
Disparate-Impact in Housing and Public Accommodations
In Kentucky, housing discrimination claims often involve disparate-impact arguments. Kentucky’s major urban areas, such as Louisville, have faced challenges related to housing practices that disproportionately affect racial minorities and low-income individuals.
These practices in particular can have a significant disparate impact on protected groups:
Redlining
Discriminatory zoning
Exclusionary rental policies
For example, a landlord in Kentucky who refuses to rent to individuals with certain criminal backgrounds might argue that such a policy is necessary to protect the safety of tenants.
However, if the policy disproportionately affects Black or Hispanic individuals, who are more likely to have criminal records due to racial disparities in the criminal justice system, the policy could be challenged under the Fair Housing Act and the KCRA as having a disparate impact.
The Griggs decision, which established the basis for disparate-impact claims, is frequently cited in housing litigation. In Kentucky, plaintiffs bringing such claims must show that the challenged policy or practice results in a disparate impact on a protected group.
The defendant (such as a housing provider) may then be required to demonstrate that the practice is justified by a legitimate business necessity or a compelling interest. If the defendant fails to justify the practice, the plaintiff may prevail in their claim.
Public accommodations, which include businesses, facilities, and services, are also governed by the KCRA, which prohibits discrimination in these spaces. A disparate-impact claim could arise in a situation where a business’s seemingly neutral policy unintentionally excludes or disadvantages individuals from a protected group.
For example, a public venue may implement a dress code that disproportionately affects African American or Latino patrons based on cultural differences in clothing or hairstyles. In such cases, a disparate-impact claim could be pursued under the KCRA to challenge the discriminatory effect of the policy.
Litigation Strategy in Disparate-Impact Claims
In Kentucky, the plaintiff carries the burden of demonstrating that the policy or practice has a significant adverse impact on a protected class. This typically involves statistical analysis and evidence of disparities in outcomes between different groups, which is why it's a good idea to work with an experienced employment law attorney.
Plaintiffs must also demonstrate that the policy or practice isn't justified by a legitimate business necessity or other overriding reason. For example, if an employer can show that a hiring test is critical for determining job performance, then the policy may be deemed justified, even if it results in a disparate impact.
Employers and defendants in disparate-impact litigation often seek to defend themselves by arguing that the practice is a necessary part of their business operations and that there's no alternative practice that would achieve the same result with less impact on protected groups.
Additionally, employers may argue that the statistical evidence presented by the plaintiff is insufficient to prove a significant disparity, or that any disparities are the result of external factors unrelated to the policy.
By working with an employment law attorney like myself, Attorney Chris Sanders, you can make sure that your case is built on solid legal grounds. I'll help you gather and present the most compelling evidence, such as professional testimony, workforce data, and relevant workplace practices, to demonstrate the true impact of these policies.
Together, we can challenge any defenses raised by the employer and work toward securing a favorable outcome for you, whether through negotiation, settlement, or litigation. With my experience and dedication, you can feel confident that your rights are being fiercely protected.
Contact an Employment Law Attorney Today
If you feel your rights are being infringed upon by disparate-impact discrimination, don't hesitate to reach out to Chris Sanders Law PLLC. I serve clients throughout Louisville, Kentucky, and the surrounding areas. Contact me today to schedule a consultation.