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Still, we, here at Miletti Law®, feel obligated to enlighten, educate, and create awareness, free of charge, about how these issues and many others affect our unusually motivated® readers and/or their businesses. Accordingly, in order to achieve this goal, and as part of our continued commitment to you, we have committed ourselves to creating authoritative, trustworthy & distinctive content, which is featured as videos that are posted on our YouTube Channel and blogs that are published on our website WWW.MILETTILAW.COM. With that, the ball is in your court and you have an effortless obligation to subscribe to the channel and sign up for the Newsletter on the website, which encompasses the best way to ensure that you stay in the loop and feel the positive impact of the knowledge bombs that we drop here!

As the authoritative force in Employment Law, it only seems right that we, here at Miletti Law®, continue updating our series with new, verifiable, and credible content, which looks to not only educate, but also deliver in a sense that only Miletti Law® can. In that spirit, this blog is Part III of our series on “Disability Employment Discrimination Defense Checklist for ADA Claims,” through which we aim to provide you with a hands-on guide on the checklist of issues that you or your defense counsel may consider when defending against a disability discrimination claim brought forth under the Americans with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.). In Part II of the series, we hammered on the checklist of issues to consider when it comes to the “Statute of Limitations for ADA Claims” and “Defending against Disparate Treatment Claims.” Accordingly, we now move forward the discussion and hammer on the checklist of issues you may consider when defending against “Disparate Impact Claims.”

Defending against Disparate Impact Claims

For starters, it is crucial to understand what “disparate impact” is and what the labor law says about it. In layman’s terms, disparate impact happens when regulations, practices, or policies in a workplace, which technically appear to be neutral, result in a disproportionate impact on an employee or member of a protected class.

Please, read more about the protected classes under the employment and labor law in New York in our blog accessible through

Under the labor law, disparate impact is viewed as a discriminatory practice and, thus, employees or any member of a protected class in a workplace can bright forth a claim alleging it under the ADA. Accordingly, defending against such a claim is of critical importance for covered employers.

That being said, let us now dive right in to the day’s matter.

Because an employer can be liable, under the ADA, for discrimination even if it is unintentional, it is crucial to assess whether the employer has a facially neutral policy that adversely impacts applicants or employees with a disability, if you need to defend against a disparate impact claim. In this regard, the checklist of issues to look into include, but not limited to:

The consistency and job-relatedness of the policy/practice in question with business necessity

In line with the provision 29 C.F.R. § 1630.15(c), an employer must establish that while performance cannot be accomplished with reasonable accommodation, the policy/practice in question is job-related and consistent with business necessity if an employee can establish a prima facie case. Accordingly, in order to make the business necessity showing, the employer must show that:

  • Since the policy/practice measures skills that relate to whether a person can effectively perform the essential functions of the job in question or not, this policy/practice creates no unnecessary, arbitrary, or artificial barrier.
  • If the policy/practice in question is a test or qualification, professionally acceptable techniques should be used to show that test or qualification is predictive of, or substantially correlated to, vital requirements of the job’s safety or effectiveness or its essential functions.

The employee’s ability to demonstrate a prima facie case of disparate impact

Under this issue, you should evaluate whether all the elements of a prima facie case of a disparate impact claim have been satisfied by the employee or applicant. In order to establish a prima facie disparate impact claim, the employee or applicant must:

  • Establish a causal connection between the adverse impact on employees or applicants with a disability and facially neutral policy.
  • Identify a facially neutral employment practice or policy.
  • Provide evidence showing that as compared to non-protected class members, that employees with disabilities are denied a particular job benefit or underrepresented in the employer’s workforce more often.

The assertion of the applicant or employee that a reasonable alternative with a less disparate impact is available

In this case, you should contest an applicant or employee’s claim regarding the availability of a reasonable alternative with a less disparate impact. This is because the employee will try to show the availability of an alternative, less discriminatory means to achieve the employer’s business purpose. Here, you should seek evidence to support the employer’s claim that no other reasonable option with less disparate impact is available.

In Part IV of this series, we shall look into the checklist of issues you may consider when defending against claims of failure to reasonably accommodate disabilities, as provided for under the ADA.

Until then, stay tuned for more guidance and counsel, and strive to be #UnusuallyMotivated. In the interim, reach out to us at the Contact Us page for answers to your questions and/or comments and business legal representation.

Always rising above the bar,

Isaac T.,

Legal Writer & Author.