Employees may sense that something is wrong in their workplace in terms of the employer’s non-discrimination practices when the employer seems to have no illegal bias at all. Nevertheless, their eyes may tell a different story and discern a distinct and irrational imbalance in the workplace demography as to sex, race, age, etc. While the employer may have no intent to discriminate, an employer’s policies that appear on their face to be neutral could curtail the hiring, promotion and retention of certain protected classes of person, or lead to disparate impact discrimination. See NJ Sex Discrimination Attorney, I’m a Female Executive Unfairly Evaluated.
Disparate Impact Discrimination, What Is It? And Is it Legal?
Unlike most discrimination claims, disparate impact claims do not require proof of a discriminatory motive. In Gerety V. Atl. City Hilton Casino Resort, 184 N.J. 391 (2005), the New Jersey Supreme Court acknowledged that an intent to discriminate against a protected class was not required to prove illegal discrimination under the New Jersey Law Against Discrimination (LAD) when there is a disparate impact cause of action. In Gerety and other discrimination cases, courts held that that disparate impact claims are cognizable pursuant to the LAD. Even before Gerety, courts had long interpreted the LAD to prohibit disparate impact discrimination. See NJ Employment Attorney, I Was Put on a PIP: the Dangers of a PIP.
Do not sit on your rights! If you are being subjected to unlawful workplace discrimination or believe you are being pushed out of your job, contact Hope A. Lang, Attorney at Law today for a free consultation. I have successfully represented executives, managers and all level workers who were subjected to discrimination. This law office accepts cases from all over New Jersey and has locations in Southern, Central and Northern NJ to meet with clients. Call today for a free consultation. See NJ Age Discrimination Lawyer, Oldest Worker Unfairly Criticized, Then Given Poor Evaluations.
Disparate Impact Is Illegal but There Is an Exception
Under a disparate impact legal theory, an employer is prohibited from enacting and enforcing policies or practices that are facially neutral in their treatment of different protected classes, such as sex, race, age, etc., but cause hardship on persons in one protected class more so than others. There is a “disparate impact” on one class, not originating by biased motive, but in its resulting disproportionate demographics. Disparate impact is illegal in most circumstances. The one exception is when the policy or practice can be justified as a true business necessity, and there is no viable alternative, i.e., unless it is shown that such practices or policies are necessary to achieve a substantial, legitimate, nondiscriminatory interest and there is no less discriminatory, equally effective alternative that would achieve the same interest, which can be difficult for the employer to prove.
What Is Necessary for an Employer to Prove a “Business Necessity” to Defeat a Disparate Impact Claim?
When an employer has a facially neutral policy or practice, but the policy or practice nevertheless causes hardship within one protected class more so than others, to defeat a disparate impact illegal discrimination claim, the employer must prove a true business necessity by showing:
1) that such practices or policies are necessary to achieve a substantial, legitimate, nondiscriminatory business interest, and
2) there is no less discriminatory, equally effective alternative that would achieve the same business interest.
NJ Courts and United States Supreme Court Both Recognize Disparate Impact Claims
In determining whether members of the classes protected by LAD have been subjected to unlawful discrimination in an employment setting, the NJ courts look to the substantive and procedural standards established under federal law for general guidance. In determining whether unequal treatment has occurred, either intentionally or unintentionally as a result of the employer’s policy's impact on members of a protected group, two approaches have been generally applied and accepted. The United States Supreme Court has recognized two theories of relief under Title VII, disparate treatment and disparate impact, and the Supreme Court of New Jersey acknowledges both as cognizable under the LAD.
Disparate treatment is the most widely known and easily understood type of discrimination. The employer simply treats some employees less favorably than others because of their protected class such as race, sex, or national origin. Proof of discriminatory intent is required, however it can in some situations be inferred from the mere facts of differences in treatment. See New Jersey Race Discrimination Lawyer.
Disparate impact is less widely known and understood. Disparate impact involves employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive is not required under a disparate impact theory. See Bergen County, New Jersey Sex Discrimination Lawyer.
Some Examples
In employment, practices and policies must be job-related and consistent with business necessity. For example:
A job requirement for a store clerk in hardware store that they be able to lift 85 pound pails three feet high to stack on a hand-truck and load onto customers’ pickups would likely disproportionally negatively affect females more than males and disproportionately screen out females. However, if lifting 85 pound pails to stack on a hand-truck and load onto costumers’ pickups is a regular substantial, essential daily function of a clerk’s job, then an 85 pound lifting requirement might be considered job-related and consistent with business necessity.
However, if a grocery clerk employment position requires that a grocery store clerk be able to lift 85 pound crates and boxes, but in reality, the stores’ crates and boxes are never over 30 pounds, then an 85 pound lifting requirement is not related to the job and consistent with business necessity.
A firefighters’ physical fitness test that disproportionately screens out female applicants might be justified if it accurately measures abilities essential for the job and no less discriminatory test can assess the same skills.
What You Can Do
If you are an employee who is experiencing discrimination, contact us today for a free consultation. I have represented numerous employees who were discriminated against, and I was successful in recovering multiple six-figure financial compensation for their emotional pain and suffering, and moneys for lost wages, both for past lost wages and projected future lost wages.
If you resign, you may lose right to prevail in a lawsuit
In many instances of discrimination and retaliation, if you resign, you may lose right to prevail in a lawsuit unless you first take certain legally required measures to preserve your job while you are still employed. If you are thinking of resigning, or think you will be fired, or have been fired, you should contact this office immediately for a free consultation to discuss your options in the safest way for you.
I accept discrimination cases from all over New Jersey and have locations in Southern, Central and Northern NJ to meet with clients.
Hope A. Lang, Attorney at Law represents workers throughout the entire state, including Hackensack, Jersey City, Newark, Irvington, Orange, East Orange, Trenton, Paterson, Montclair, Elizabeth, North Brunswick, Cherry Hill, Vineland, Union, Plainfield, Hamilton Township, Lakewood, Edison, Parsippany-Troy Hills, Franklin, Lakewood, and every NJ County, including Bergen, Hudson, Middlesex, Essex, Monmouth, Somerset, Ocean, Union, Camden, Passaic, Morris, Gloucester, Atlantic, Burlington, Camden Counties.