When most people talk about illegal discrimination in the workplace, they talk about intentional conduct. Examples might include an employers who refuses to hire women, or a manager who uses racist epithets to berate their employees, But discrimination in the workplace doesn’t necessarily have to be intentional for it to be illegal, and workers don’t always have to prove that the behavior was purposeful in order to prevail in a discrimination claim.
Under New York and federal employment law, illegal discrimination can consist of disparate treatment or disparate impact.
Disparate treatment describes situations involving intentional discrimination. It occurs when employers intentionally treat one class of workers worse than others because of their protected characteristics, such as race, gender or religion.
One example might involve a company policy that pays men more than women who are doing the same job.
Disparate impact refers to situations in which an employment policy that appears to be neutral has a disproportionately negative effect on one class of workers because of their protected characteristic.
One example might involve a company that requires all employees to be over 6 feet tall. The policy is applied to all the company’s job applicants, so it might appear to be neutral and nondiscriminatory. However, because in general men are taller than women, and it’s relatively unusual for a woman to be over 6 feet tall, the policy has a disparate impact on women.
Note that there are some cases in which an employer has a valid business reason for such a policy. For instance, an employer in the construction industry might have a valid reason for demanding that all employees be able to carry heavy tools up a ladder, even if the effect of the policy is to discriminate against women. To successfully pursue a disparate impact discrimination claim, the worker must show that the employer had no valid business reason for the policy.
Intentional or not
In many cases, employers didn’t intend for their policy to be discriminatory. In other cases, employers may have secretly intended to discriminate, and so they developed a policy that seems at first glance to be neutral.
For workers who have suffered from disparate impact discrimination, the question of whether their employer intended it or not is somewhat beside the point. When they allege disparate impact discrimination, they do not need to prove that the employer intended this outcome.
This is important because it can be hard to provide evidence of what an employer was thinking: One must document every incident of mistreatment or discriminatory language, and then convince a court that this evidence proves the worker’s case. By contrast, when alleging disparate impact, the worker just has to provide evidence of the policy’s discriminatory effect.