Accidental Discrimination is Still Discrimination
It is easy to assume that every instance of employment discrimination is based on deep-seated prejudice and a conscious desire to unfairly favor one group over another. The fact is, however, that a great many of the discriminatory practices that occur in the workplace are actually accidental. Nevertheless, this type of unintended discrimination is just as damaging to those who experience it. As a result, it is just as actionable in state and federal court as well as through the appropriate administrative processes.
Some discrimination is not based on any improper motive but is simply the unintended result of policies that, on their face, appear to be completely neutral. Those in the legal and HR professions often refer to this type of discrimination as “disparate impact.” This particular type of discrimination is particularly prevalent in the areas of gender and religion and can take many forms:
- Height or weight requirements that disqualify a statistically disproportionate number of women
- Scheduling requirements that require employees to be available to work any day of the week, making it impossible for practitioners of certain religions to comply
- Dress code or grooming requirements that conflict with religious or cultural practices
- Aptitude tests that disproportionately screen out members of certain groups
Making out a case of disparate impact requires a plaintiff to show that a policy has a statistically disproportionate effect on a particular protected class of people. The employer can then respond by showing that the identified practice or policy is job related and has a reasonable business justification.
For instance, even if height and weight requirements have a statistically demonstrable adverse impact on women, they may not constitute employment discrimination if the employer can show that meeting the requirements is necessary to do the job safely. Likewise, while an employer may be required to make reasonable accommodations in grooming or scheduling practices to accommodate religious observance, it is not required to fundamentally compromise its business or safety practices to do so.