In most job discrimination cases, employees use the “disparate treatment” theory, claiming they were treated differently at work because of their membership in a protected category (e.g., gender, race, age).
But be aware that employees sometimes try to show that your otherwise neutral policies have a disparate impact on members of their protected class.
No intent or motive is needed to frame a disparate impact case. An employer can be bias-free and still guilty, as shown in the following case.
Recent case: Kathy Santana, a 20-year veteran of the Denver Sheriff’s Department, applied for a promotion to captain. She didn’t do well on the interview because she became emotional during the questioning.
After the application process, the department promoted 10 sergeants. Eight were male and Santana was not among the two females. Santana then sued, alleging that the entire selection process was biased against female candidates.
The 10th Circuit Court of Appeals concluded that Santana couldn’t show any intentional bias in the process. But it still allowed her to take her case to trial.
Why? The appellate judges said all Santana had to show was that the interview resulted in fewer female promotions, meaning it had a disparate impact on women. Because it did, it is now up to the employer to show that the promotion process is justified by legitimate business needs. (Santana v. City of Denver, No. 05-1111, 10th Cir., 2007)
The lesson: Always check the impact of your promotion or hiring requirements on protected groups. Then, if the process seems to screen out members of a protected class, see if there are alternative requirements that don’t have the same impact but meet your business needs.