Also known as: adverse impacts · disparate impact
Written by attorneys · grounded in primary & secondary sources — see below
The adverse effect of a facially neutral practice that disproportionately harms members of a protected class such as race, sex, national origin, age, or disability. Discriminatory intent is not required to establish the effect, though business necessity may justify the practice in employment settings.
State hiring rules give preference to veterans for civil service jobs. Ariana Azizi, a qualified non-veteran woman, ranks lower than male veterans with lesser qualifications and is passed over. The preference produces a clear statistical shortfall for women even though the rule is neutral on its face.
A trucking company maintains a seniority system that requires new hires to start in lower-paying departments. Andrew Avery, a Black applicant, shows that the system blocks minority workers from higher-paying roles at rates far exceeding their share of the applicant pool.
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An employer fires Antonio Alvarado after learning he is transgender. The policy is written in sex-neutral terms yet produces markedly different outcomes for employees whose gender identity does not match their birth-assigned sex.
A city fire department uses a written exam for lieutenant promotions. Amelia Amari and other minority candidates pass at rates below four-fifths of the highest-scoring group. The city discards the results to avoid the statistical disparity.
A state agency requires physical agility tests for all job applicants. Adam Anderson, who uses a wheelchair, cannot complete the test and is rejected. The test screens out a far higher percentage of applicants with disabilities than those without.
A publisher adopts an editorial policy that applies the same verification standards to all stories. Ava Adebayo, a public-figure plaintiff, shows that the policy produces far higher liability exposure for certain demographic groups of sources even though the rule itself contains no group-based language.
No. The Equal Protection Clause requires proof of discriminatory purpose in addition to a statistical disparity. A facially neutral practice that produces an adverse impact on a protected class is constitutional unless the plaintiff shows the government adopted or maintained the practice because of its effect on that class.
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Plaintiffs typically compare pass rates or selection rates across protected groups. The four-fifths rule treats a selection rate for one group that is less than 80 percent of the rate for the highest-scoring group as evidence of adverse impact.
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Once the plaintiff establishes adverse impact, the employer must prove the practice is job-related and consistent with business necessity. The plaintiff may then show that an alternative practice would serve the employer's needs with less discriminatory effect.
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…their argument that the University is unlikely to present evidence of past discrimination by the University itself or of the disparate impact of some current admissions criteria, and that these may be important and relevant factors in determining the legality of a race-conscious admissions policy. We must therefore conclude that…