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Unintentional discrimination can occur without a regular review of policies

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Practices that have been commonplace in your industry for decades may need to be re-evaluated to determine if they are necessary and relate to your business needs.  A common practice may be seen as discriminatory, even though that is not the intent.

Disparate impact is an employment practice that adversely affects a protected group more than another. It is sometimes referred to as unintentional discrimination. It is defined as: “the adverse effect of a practice or standard that is neutral and non-discriminatory in its intention but, nonetheless, disproportionately affects individuals having a disability or belonging to a protected class” (

For example, 57-year-old John Doe claims he was discriminated against based on his age when the company terminated his employment. John’s employer defends the decision, saying that Bill was fired because the company had received several customer complaints about his performance prior to his discharge.

The employer provides documentation of the complaints, making it necessary for John Doe to prove that other employees, that were younger and working in the same capacity, had also received multiple complaints, but were not fired.

The disparate impact in this example is that John Doe was fired while the other, younger employees, were not.

Situations such as this, makes having a solid disciplinary policy vital in a company’s termination decisions. Many companies have adopted a progressive discipline policy that uses increasingly severe steps and outlines for an employee what to expect for multiple infractions, including customer complaints.

The court ruling that put disparate impact on the map was the U.S. Supreme Court case of Griggs v. Duke Power Co. Duke Power Company, where IQ tests were used as a measure of suitability for a job. The court ruled in 1971 that such aptitude tests have a discriminatory effect because they are not related to actual job performance or business necessity and do not measure any job-related skills/ The court ruled that they are, therefore, illegal. (Griggs v. Duke Power Co., 401 U.S. 424 (1971).)

Please contact your HR contact at BCN Services if you have questions about workplace practices, how they might be perceived by employees and whether you need to modify your approach.