Unintentional Discrimination

I wish the flu discriminated against me. I caught the flu last week, and I am not sure if you know, but it is taxing. In some ways, I think the flu does discriminate. It is this type of discrimination that many employers engage in. The unintentional kind. Disparate Impact.

Two Forms of Discrimination:

There are two forms of discrimination. Disparate Treatment is what most people think of as discrimination. An example of Disparate Treatment is when an employer only makes Hispanic applicants take literacy tests. The employer is intentionally selecting out a group and treating the people in the group differently.

Many employers will say, "Oh, we don't discriminate." They may even genuinely believe it. However, they may also fall victim to the second type of discrimination, Disparate Impact.

Disparate Impact (or Adverse Impact) is when an employment practice has the effect of negatively impacting a protected group at a higher rate than that of a non-protected group. This is calculated using the 80% rule.

The 80% Rule:

The 80% rule looks at the ratio of the impact. Let's look at pre-employment tests to draw the example. Company A has a pre-employment test for its janitors. As a result of the tests, 50% of the white male applicants are hired and 20% of the black female applicants are hired. To determine if Disparate Impact exists, we divide 20%/50%, which gives us 40%, which is clearly below the 80% rule.

Using the flu as an example, the flu impacts the young and the elderly at significantly higher rates. I don't have the numbers to do the calculation, but we might be able to prove that the rate violates the 80% rule. Too bad the EEOC does not regulate the flu.

Disparate Impact in Employment:

Anyway, as it applies to employment, employers should be aware that even those programs with the best intentions can create liability. It is important to consider the impact of the actions as they relate to protected classes.

I once had a facility administrator who wanted to create a rule where no one with an arrest record was hired. Unfortunately, this has been viewed as potentially discriminatory, as minorities are arrested at a far higher rate than non-minorities, and arrests are not equivalent to convictions.

The administrator did not intend to discriminate, nor was he a racist, however, had he implemented this rule, the company may have been guilty of discrimination.

Tools:

Fortunately, the EEOC has provided tools to help with this.

Here is the link for the Employment Tests and Selection Procedures Fact Sheet:
http://www.eeoc.gov/policy/docs/factemployment_procedures.html

Here is a link to the Uniform Guidelines for Employee Selection Procedures:
http://www.uniformguidelines.com/uniformguidelines.html

Both are useful in ensuring good faith compliance with discrimination laws.