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To achieve our goal of keeping you informed, this blog is Part IX and an update of our series on federal laws that apply to the issues of workplace harassment, discrimination, & retaliation in New York. In Part VIII, we provided you with an overview of conducts that are prohibited under the various federal laws. Accordingly, in order to move the discussion forward, we are going to hammer on “Disparate Impact Claims,” as recognized by applicable federal laws in this blog.

Disparate Impact Claims recognized under Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York.

Americans with Disabilities Act (ADA)

The ADA recognizes disparate impact claims. Similar to the definition provided under Title VII, disparate impact claims brought forth under the ADA entail facially neutral policies that business necessity cannot justify and that fall more harshly on one group as compared to another. Despite the lack of evidence regarding an employer’s subjective discrimination, such a policy may be deemed illegally discriminatory.

Title VII of the Civil Rights Act of 1964 (Title VII)

The disparate impact and liability created by the prohibitions of discrimination under Title VII use a practice that business necessity cannot justify and that fall(s) more harshly on one group as compared to another. As such, to analyze disparate impact claims under Title VII, courts apply the following criterion:

  • Firstly, the employee has to bear the burden of showing that an employment practice used by an employer caused a disparate impact on a protected class.
  • Then, the employer must counteract and demonstrate that with it was consistent with business necessity, the employment practice was related to the job.
  • Then, with another shift of the burden, the employee must then demonstrate that the employer would have used an alternative employment practice that would result in less of a disparate impact, as well as serve the goals of the employer effectively.

Pregnancy Discrimination Act (PDA)

Currently, pregnancy is recognized as a protected status following the amendment of PDA into Title VII. This means that disparate impact claims applicable to the latter are also applicable to the former.

Age Discrimination in Employment Act (ADEA)

Under the ADEA, disparate impact is a theory that applies when a facially neutral practice or policy that results in a discriminatory or adverse impact on a protected group of employees is used by the employer. Accordingly, the Act provides authority regarding recovery on a disparate impact theory. However, unless the intention of the employer entailed utilizing the system to evade the purposes of this Act, employees are not permitted by the ADEA to challenge a bona fide seniority system adopted by the employer. Rather, when challenging such a system, an employee is required to prove that the employer engaged in “disparate treatment” (intentional discrimination), which caused the disparate impact in question.

As provided for under Section 29 C.F.R. § 1625.7 of the ADEA, the use of a defense known as RFOA (Reasonable Factor Other Than Age) is permitted in ADEA cases. Technically, if an employer can demonstrate that the challenged employment action was made on a “reasonable factor other than age,” an employee’s disparate impact claim will not survive even if such an employee has articulately satisfied the court by setting forth a prima facie ADEA case of age discrimination. The focus of this affirmative defense revolves around the “reasonability” of the relied-upon factor in consideration of all circumstances and facts concerning the employer’s knowledge of the practice in question. However, a disparate treatment claim cannot adopt RFOA as a defense. Furthermore, when age is used as a limitation criterion by an employment practice, the RFOA is not an applicable defense.

Equal Pay Act (EPA)

The EPA contains a defense allowing, due to “any factor other than sex,” a pay discrepancy from one employee to another. While they have found that disparate impact claims are not consequently recognized by the EPA, “any” has been interpreted without limitation by some courts. On the contrary, others have found that “any” only implies reasonable factors other than sex and, as a result, disparate impact claims permitted by the EPA. For example, in the case Smith v. City of Jackson, 544 U.S. 228 (2005), the Supreme Court implied in dicta that, because “any other factor” could be “reasonable or unreasonable, the intention of the Congress was for no EPA-recognized disparate impact claims.

Section 1981

Since the law requires both a discriminatory motive and intentional discrimination, Section 1981 does not permit employees to bring forth disparate impact claims. Generally, although the primary focus is to show how a facially neutral policy or rule affected a protected class, a showing of intent is not required when evaluating disparate impact claims.

Immigration Reform and Control Act (IRCA)

In line with Section 8 U.S.C. § 1324b, the IRCA does not permit disparate impact claims because only national origin discrimination that is both “intentional” & “knowing” is covered under the Act.

In Part X, we will move forward the discussion by hammering on “Harassment Claims,” as recognized and evaluated under federal laws applicable to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.