HR Support on Disparate Impact Issues

Editor's Note: Avoid policies that have a disparate impact on a protected class.

Beth P. ZollerOverview: Disparate impact discrimination occurs when neutral workplace policies and practices unintentionally cause a negative or adverse impact on individuals in a protected class. While there is not necessarily a discriminatory motive and the discrimination is not necessarily intentional, individuals in a protected class may suffer employee discrimination.

In order to defeat a claim of disparate impact discrimination, an employer needs to show that the policy, practice or business requirement in question is a business necessity and there is a legitimate nondiscriminatory reason for it. In response, an individual may argue that the employer should have utilized an alternative employment policy or practice that would not produce the disparate results or would not have a discriminatory effect. Disparate impact claims usually arise in the contexts of preemployment and employment tests and other selection procedures.

Trends: The EEOC has recently focused its attention on criminal background checks that have a disparate impact on a protected class such as race. In doing so, the EEOC issued enforcement guidance indicating when it is permissible to do a criminal background check under Title VII.

Pursuant to this new guidance, employers should be especially cautious in adopting any blanket policies prohibiting employment because of any criminal conviction. The EEOC advises employers to consider the actual requirements of each job and why convictions for a specific offense should prohibit employment in that particular job. Further, employers should conduct an individualized assessment for each applicant affected by a criminal background check and assess the type, severity, date, and number of prior convictions, and any extenuating circumstances such as rehabilitation efforts or post-conviction work history, to determine whether an individual with a conviction on his or her record should be hired.

Employers should also be aware that some state law such as that in New York addresses criminal background checks and their adverse impact in a similar manner.

Author: Beth P. Zoller, JD, Legal Editor

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HR guidance on legal issues regarding disparate impact discrimination. How to avoid discrimination against protected employees and applicants.