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What is disparate impact?

If you recently lost your job due to a company downsizing, you may wish to determine which of your coworkers also lost theirs. Why? Because if you discover that significantly more of you are women or older workers or some other protected group, you may have a legitimate disparate impact cause of action against your former employer.

FindLaw explains that disparate impact is a form of employment discrimination that occurs when an employer’s policies or procedures, even though seemingly neutral, in actuality negatively affect a particular protected group. Both Title VII of the Civil Rights Act of 1964 and the Civil Rights Act of 1991 prohibit employment discrimination based on a person’s race, color, ethnic origin, religion, disability, gender, sexual orientation, military status, genetic information, etc. If you and the other employees your company terminated belong to one or more of these groups and you discover that the downsize disproportionately affected you as opposed to other workers, disparate impact represents a real possibility.

Business necessity

Disparate impact cases often are difficult to prove. No one-size-fits-all definition exists for what constitutes this form of discrimination. Courts therefore must go on a case-by-case basis. Consequently, your proof will need to consist of statistics and the analysis thereof that show which protected group(s) your former employer’s downsize policy and procedures negatively affected and by how much. Once you do, however, the burden of proof shifts to your former employer to show that it had legitimate business necessities for its policies and procedures, even though they ultimately produced a discriminatory effect.

Age discrimination

If your proof shows that your former employer terminated far more older workers than younger workers in its downsize, it has a second way to defend against your disparate impact claim. Called the RFOA defense, your former employer must show that it based its policies and procedures on a Reasonable Factor Other than Age.

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