Disparate impact and age discrimination

The Civil Rights Act of 1964 outlawed many forms of discrimination in employment, including discrimination on the basis of race, sex or religion. In the decades since the act was passed, other laws and court rulings have added certain protections for characteristics such as age, disability, gender presentation and sexual orientation. States and local governments have also added protections of their own. California has some of the nation’s strongest anti-discrimination laws.

Employers are familiar — or should be familiar — with these laws, and most try to abide by them. Unfortunately, some have just learned to be more subtle about what they’re doing.

In employment law today, it’s somewhat unusual to find a case in which an employer clearly acknowledges that they intended to discriminate against workers on the basis of sex, race or another protected characteristic. Instead, employment discrimination cases often center on other types of evidence.

One type of evidence that can show discrimination is known as disparate impact.

Disparate impact example

In the context of employment law, the term “disparate impact” refers to circumstances in which an employer’s general practice or policy is applied in a way that, though it might appear to be fair, results in members of one group disproportionately facing negative consequences.

For example, imagine an employer that requires all employees to undergo the same annual test of their fitness and physical strength. Employees who do poorly on the test are demoted or fired.

The employer applies this policy to all employees equally. However, it has a disparate negative impact on older and disabled employees. They are less likely to do well on the test, and so the policy means they are more likely to be demoted or fired.

This could mean the policy, while neutral on its face, discriminates in practice on the basis of age.

Reasonable factors other than discrimination

The federal Equal Employment Opportunity Commission developed a rule to deal with exactly the type of age discrimination in the example above.

The rule requires employers who are accused of this type of age discrimination to show that their policy was based upon a “reasonable factor other than age,” or RFOA. In other words, a court may rule the policy does not violate the law if there is some legitimate business purpose behind it.

For example, if, in the example above, all the workers were employed as lifeguards at a swimming pool, then their physical fitness would be relevant to their job duties. If so, then a court might find that the policy is not in violation of laws against discrimination.

Uncovering discrimination

There are many types of policies that can have a discriminatory impact on certain groups of workers. Uncovering the discrimination in these cases can be complex.

Workers who feel they have been discriminated against should learn more about their legal options.