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Beware Disparate Impact Discrimination

Posted by Amy Royal on Apr 23, 2014 7:48:00 AM

Editor's Note - Amy B. Royal, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned labor and employment law firm in Northampton.

DiscriminationSuppose a company with a high rate of workplace injuries implements a strength test to screen out job applicants after research reveals that this type of test would reduce such injuries.  Could such a test be considered discriminatory?

The answer is “it depends” on whether the test has a disparate impact on a group protected under anti-discrimination laws.  If the test creates a disparate impact, it may not be permissible.

What is disparate impact discrimination?

Disparate impact discrimination occurs when a seemingly neutral and non-discriminatory practice, such as the strength test referenced above, has a disproportionate impact on a protected class of employees.  If women, disabled individuals, or some other protected classes are not able to pass the strength test in large numbers, the test could give rise to a disparate impact claim.

Intent or motive in disparate impact discrimination is irrelevant.  The effects or impact of the policy or practice, not the intent, is what controls. Disparate impact discrimination can thus sneak up on organizations in ways it could not have imagined. 

How does disparate impact discrimination arise?

Disparate impact discrimination commonly arises in employment testing, employee assessments, job prerequisites, and other seemingly innocuous employment practices.  That means all tests, assessments, or employment policies or practices must be carefully examined to be sure they do not unintentionally affect a particular protected group. 

The following are examples of employment tests that could be implicated and, thus, should be considered for their potential disparate impact:

  • physical abilities or strength tests;
  • performance tests;
  • promotion or advancement tests;
  • personality tests;
  • cognitive tests;
  • drug tests; or
  • English proficiency tests.

Employment screenings or background checking, such as medical inquiries and examinations or criminal history or credit checks could also give rise to disparate impact discrimination claims.  So can requiring certain degrees or certificates, or particular training or other experience.

The good news with respect to disparate impact claims is that the employee bears the ultimate burden of establishing her case.  The employee must establish through specific evidence that a particular employment test or practice has a disparate impact on a protected group.

If the employee can make this showing, the company must then establish that the test or practice was specific, narrowly tailored, and related to the job and consistent with business necessity.  The kicker in these cases is that if a less discriminatory alternative test or practice is available, generally, the company should have used that.    

Why does disparate impact matter?

Think dollar signs.  Unfortunately, because of the nature of these cases (i.e., an entire group of people are claiming to have been impacted), they arise with a significant punch:  they take shape as a class action.  Class action lawsuits are extremely costly to defend and carry with them high damage awards should a verdict go against you.    

Examine your employment practices to ensure that your policies and practices, as well as any tests and selection procedures you are using, are meaningful and necessary.  Be certain that you can justify why they are necessary for your business.  Also, be certain that you can articulate the ways in which the tests or practices are specifically job-related. 

Here are examples of the types of policies and practices that you should examine:

  • Drug testing
  • Dress codes
  • Policies on advancement, promotions, or seniority
  • Attendance
  • Hiring
  • Prescreening and testing
  • Advancement
  • Disciplinary
  • Fitness for duty
  • Drug testing
  • Supervisory

As a preventative measure, companies may turn to the Uniform Guidelines on Employee Selection Procedures as a guide to validate their tests and selection procedures.  These Uniform Guidelines, which were established by the federal government in 1978, provide technical assistance and standards for employers to follow when using testing or selection procedures. 

The bottom line in reducing your exposure to disparate impact discrimination is this:  make sure that any test or employment practice is job-related, commensurate with the requirements of the job, and consistent with business necessity.  Make sure that any test or assessment you use measures skills in the most effective ways and that they are otherwise reasonable for the particular job.  It is always a best practice to work closely with your labor and employment counsel before implementing any new test, practice, or policy.  It is also advisable to review with counsel all tests, practices, and policies on an annual basis.   

Topics: Employment Law, Human Resources, Discrimination

Court Opens Door for Employees to Sue Co-Workers over Harassment

Posted by Amy Royal on Aug 2, 2012 11:01:00 AM

The already complex landscape of discrimination law facing Massachusetts employers has become even more confusing now that a court has ruled that employees may sue co-workers for sexual harassment and retaliation.

Employment LawIn a case decided earlier this summer, a federal trial court held that a non-exempt co-worker may be sued individually under Massachusetts Chapter 151B for sexual harassment and retaliation. (Martin v. Irwin Industrial Tool Company, et al.) (Neiman, U.S.M.J.). Massachusetts courts have long recognized that supervisors may be held individually liable by virtue of their position in management and the accompanying authority that comes with such a position, but Martin expands that standard to include co-workers.

Because the Martin case arose out of the federal trial court, it is not binding on any Massachusetts court. No Massachusetts court has to date tackled the issue of whether a rank-and-file worker may be sued individually for employment discrimination under our state statute. It is likely that if and when a Massachusetts appellate court tackles this issue, it may reach a different conclusion that the federal court.

But until a Massachusetts court resolves this issue, the Martin decision will readily be used by any plaintiff’s attorney as grounds for having the ability to sue a rank-and-file worker.

As a result of this case, you may face a non-management, rank-and-file worker as your co-defendant in a lawsuit. Apart from the lawsuit, you will have to make a decision about this employee. This worker likely does not have the means and/or resources necessary to obtain separate counsel. Your options then become:

  • paying for an attorney for this worker yourself;
  • having your employment law attorney represent both of you, provided there is no conflict, or
  • having the worker pay for his own attorney.

All three options create potential issues. Hiring a separate attorney for the worker is obviously costly and, with separate counsel on board, you lose a certain amount of control over the way the case progresses and the direction it takes.

If a rank-and-file worker represents himself, you similarly lose control over the progression of the case; the litigation may not be as efficient; the worker may become uncooperative; and/or the worker may default.

While there are benefits to a joint representation arrangement, such as presenting a unified front, cooperation from the worker, and retaining more control over the direction of the case, issues and/or conflicts could arise down the road, such as with strategy or settlement. These types of issues will need to be explored carefully with your labor and employment law counsel as you face litigation.

How can employers reduce their risk?

The actions of any employee, management or non-exempt, may lead to a harassment or discrimination complaint being filed against the company. Under Massachusetts state law, all employers of six or more employees must have a sexual harassment policy in place that is distributed to all workers. To minimize the risk of a complaint being filed employers should:

  • Make sure the policy is issued to all new hires and annually to all employees;
  • Host anti-harassment and discrimination training for all employees to ensure they understand their rights under the policy
  • Clarify that non-exempt employees that they are just as important to help stop harassment and discrimination
  • Train your supervisors on how to speak with their non-exempt employees about identifying and responding to harassment or discrimination

Amy B. Royal, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor- and employment-law firm. 

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21st Century Workplace

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Topics: Employment Law, Human Resources

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