So your work rules are fair and neutral. There’s no way employees belonging to a protected class would sue you, alleging the rule has a disparate impact. Guess again—it happens.
Avoid such surprises by conducting your own informal audit to assess the rule’s impact. Then get expert help if you believe your seemingly neutral rule could conceivably have a disparate impact on any group.
Consider this recent case, which has resulted in years of legal wrangling.
Recent case: Amtrak had a rule that said union employees must be in their current positions for at least one year before being considered for promotions. The rule provided no exceptions, and was probably based on the idea that it’s a good idea for those seeking promotion to master and succeed in their current jobs before moving up.
But a group of women sued, alleging that in practice, the supposedly neutral rule had a disparate impact on their ability to earn promotions to.
For example, Sharyn Stagi did earn a promotion into the management ranks, but was then bumped back into a union spot after a reorganization. When other management spots opened up, she found herself ineligible because she hadn’t held the union position for more than a year.
Stagi went to an attorney, who hired a statistical expert to assess whether the rule disparately affected women when it came to management promotions. They were, by a wide statistical margin. The expert said it was virtually impossible that the resulting lack of female promotions was just chance or bad luck rather than caused by the rule.
The 3rd Circuit Court of Appeals ordered a trial. (Stagi, et al., v. Amtrak, No. 09-3512, 3rd Cir., 2010)
Final note: If you discover the rule discriminates, change it before litigation starts.