Is the Disparate Impact Analysis Finished?

Equality may perhaps be a right, but no power on earth can ever turn it into a fact.

-Honore de Balzac

With the U.S. Supreme Court hearing Mt. Holly Gardens Citizens in Action v. Mt. Holly, the assault on the disparate impact analysis of discrimination has begun. Disparate impact is a controversial method of proving discrimination by governments, lenders and employers through the statistical effect of a policy without showing any discriminatory intent.

The Mt. Holly case — disparate impact theory in action

Residents of a poor neighborhood in Mt. Holly, New Jersey sued to prevent the town’s redevelopment plan that involved replacing hundreds of low-income houses with more costly middle-income homes. The U.S. District Court said that the petitioners did not show a claim of discrimination by producing statistics that black and Latino residents would no longer be able to afford the housing in their neighborhood. The U.S. Court of Appeals reversed recognizing the case as a traditional case of illegal discrimination by means of disparate impact. The U.S. Supreme Court must now decide.

Disparate treatment

The U.S. Supreme Court defines disparate treatment as a circumstance in which the employer discriminates against members of a legally protected group by treating them less favorably than other similarly situated employees. Plaintiffs must show that the employer intended to discriminate because of the employee’s membership in the protected class.

Disparate impact

Disparate impact occurs when an employer’s neutral policy or practice has a discriminatory effect on a protected class. For example, an employer might institute a test of employees’ stamina and physical strength for a certain position in a company. The test is apparently neutral but may exclude a disproportionate number of female candidates.

Proving employment discrimination can be very complicated, because not many employers overtly express their discriminatory beliefs. Before filing a claim, consult with an experienced New York employment discrimination attorney.