Table of Contents
- What Is Disparate Impact Discrimination?
- What Is Changing at the EEOC?
- What This Means for Employees
- What Should You Do if You Suspect Disparate Impact Discrimination?
- Contact an Employment Lawyer
For decades, federal law has protected employees from two types of discrimination: disparate treatment (intentional bias) and disparate impact (policies that are neutral on their face but have a discriminatory effect). Disparate impact has been a crucial tool for challenging hiring screens, tests, and other procedures that disproportionately harm certain groups, even without proof of discriminatory motive.
However, the Equal Employment Opportunity Commission (EEOC) has recently begun to retreat from pursuing these systemic, impact-based investigations, leaving a critical gap in employee protection.
What Is Disparate Impact Discrimination?
Disparate impact occurs when a company policy or practice appears neutral but results in a disproportionately negative effect on a protected group (based on race, sex, religion, etc.).
Common examples include:
•A physical ability test that screens out more female applicants than male.
•A criminal background check policy that disproportionately affects applicants of a certain race.
•An AI-driven hiring tool that learns to favor candidates from specific demographic groups.
Unlike disparate treatment, you do not need to prove the employer intended to discriminate; you only need to show that the policy had a discriminatory effect.
What Is Changing at the EEOC?
Recent directives indicate the EEOC is shifting its focus away from large-scale, systemic disparate impact investigations and toward individual cases of intentional discrimination. This means the agency is less likely to:
•Conduct deep statistical analysis of company-wide policies.
•Investigate patterns of discrimination affecting large groups of workers.
•Compel employers to disclose the data needed to prove a disparate impact claim.
While the law itself has not changed, the primary federal agency responsible for enforcing it is stepping back, placing a heavier burden on individual employees.
What This Means for Employees
This shift in enforcement priorities has significant consequences for workers:
•The Burden Shifts to You: Without the EEOC’s investigative power, it becomes much harder for an individual employee to gather the statistical evidence needed to prove a disparate impact claim.
•Hidden Biases May Go Unchecked: Systemic issues, like biased hiring algorithms or unfair testing protocols, are less likely to be discovered and corrected.
•Fewer Public Resolutions: A decrease in EEOC-led investigations may lead to fewer public settlements and less awareness about discriminatory practices.
Your rights have not changed, but the path to enforcing them has become more challenging. It is more important than ever to be proactive and understand your legal options.
What Should You Do if You Suspect Disparate Impact Discrimination?
If you believe a company policy is having a discriminatory effect, you still have options.
1.Document the Effects: Keep detailed notes on how the policy is applied and who it seems to be affecting. Note any patterns you observe.
2.File an EEOC Charge: You should still file a charge with the EEOC. This preserves your legal rights and is a necessary step before you can file a lawsuit in federal court.
3.Consult with an Employment Lawyer: This is the most critical step. An experienced employment lawyer can help you evaluate your claim, navigate the EEOC process, and use legal tools like discovery to obtain the data your employer controls.
Contact an Employment Lawyer
Even with the EEOC’s shift, you are not without recourse. If you believe you have been harmed by a discriminatory workplace policy, our firm has the experience to investigate and fight for your rights. Contact us today for a free, confidential consultation to discuss your case.
