Currently, in Ferguson, Michigan, the Justice Department alleges a pattern and practice of discrimination against the City for its various biases in the policing of black residents. Such allegations of systemic discrimination are not uncommon. They reflect a legal theory beyond intentional discrimination.

The legal theory at work in Ferguson is called disparate impact theory and its not limited to instances of racial discrimination and racial justice. Similarly, it can extend to any group protected under anti-discrimination and employment laws. When an employer’s pattern of systemic discrimination arises, and an employee or group of employees can prove it, even if there is no discriminatory intent, it may be actionable in court.

What is Disparate Impact?

The headline-grabbing sex discrimination suit that resulted in a class action that made it all the way to the Supreme Court. Walmart v. Dukes will go down in history as a landmark sex discrimination case in which scores of women claimed their employer had participated in systematic sex discrimination.

That case was knocked out of the Supreme Court in a 5-4 decision which sent shockwaves through the employment law community. Though the biggest reason for the decision was the size and scope of the class of women, the allegations against Wal-mart, one of the largest corporations in the world, of a pattern and practice of sex discrimination are poignant.

What does a pattern and practice of discrimination actually mean, and what is disparate impact theory? Different from overt discrimination, which involves an employer intentionally discriminating against an employee based on his or her membership in a protected class, systemic discrimination comes about due to recurring discrimination as a widespread company policy.

How Does Disparate Impact Theory Apply to Sex Discrimination?

Such routine discrimination is often proven using statistics and tests to show that a company has an obvious history of denying certain employees their rights. Areas in employment where disparate impact theory may apply are diverse. These basically show neutral employment decisions which have an adverse impact on classes protected under Title VII and other anti-discrimination laws. Here are a few examples:

• the use of written tests to qualify applicants for positions in the company
• the use of height and weight requirements to qualify applicants for certain positions
• the use of educational requirements that prevent promotions of protected classes of employees
• the use of specific, subjective criteria in interviews that results in exclusions of protected classes of applicants.

In terms of sex discrimination, disparate impact theory can be proven when there is a policy or practice in place that, while on its face and in its its form is non-discriminatory, has an adverse impact on women in the workplace.

Proving a Pattern of Discrimination Against Women?

At first glance, it may seem that proving such a complex legal theory would be a complicated endeavor. This may be indeed be true, and it’s definitely not something an employee should attempt without the extensive expertise of an experienced employment law attorney. However the rules for establishing a prima facie case of disparate impact are quite straightforward.

Generally, proving disparate impact means that an employee must identify a practice that has an adverse impact on women in the workplace, and this is usually done using statistical methods. Such employment practices maybe with objective such as employment tests with a disproportionate affect on women, or they may be subjective.

Subjective employment practices include employer thoughts about the way a woman interviews or how she performs at work or even the measurements of her candor, demeanor and attitude.

Employer Defenses in a Disparate Impact Case

An employer is not left with out a way to defend itself when an employee or group of employees allege systemic sex discrimination. Once a plaintiff in a disparate impact case establishes a prima facie foundation for the claim, the employer may respond by challenging the statistical methods or analysis that lie at the basis of the claim.

The employer may also respond with another well-known defense to disparate impact claims – business necessity. According to court precedent, the primae facie claims for disparate impact will hold unless a company can show that the disproportionate effect is of a specific business necessity.

This means that the employer could refute the claim by showing that the particular practice in question is job related and specifically necessary to the business. However, in the event the employer is able to make such a showing, the employee is not without one more option. The employer could then show that the employer has refused to consider a less discriminatory alternative practice.

Beyond Wal-Mart v. Dukes: A Few Hypothetical Examples

A disparate impact case of sex discrimination is not based on an employment practice that explicitly demonstrates discrimination. In fact on its face, the practice or policy may appear objective and neutral. However, it is up to the plaintiff to prove, when applied in practice, the policy does not treat men and women equally despite its neutral appearance.

For instance, if an employer implemented a routine test for new applicants that screened out those who were more likely to become sick from working in the employment environment, and this test disproportionately affected women because it singled out complications due to pregnancy, such a test could violate Title VII’s prohibitions against sex discrimination under a disparate impact theory.

Similarly, if an employer implemented a policy that required perfect attendance for ten years for employees aged 18 to 25 before promotions may be given, this policy too might violate Title VII under a disparate impact theory. If a female employee could prove that the policy routinely prohibited women from promotions because they were unable to maintain perfect attendance due to pregnancies and maternity leave, the employee could have a legitimate claim of sex discrimination under disparate impact theory.

If you think there’s a pattern of sex discrimination at your job…

If you think there’s a pattern of sex discrimination at your job due to a policy or practice that despite its apparent neutrality, is discriminatory in practice, contact an experienced employment discrimination attorney. A disparate impact case can be a long and difficult road to justice, but with the right assistance, it can lead to ultimate success.