We have noted before that discrimination comes in two sizes – intentional discriminatory treatment, and “disparate impact” discrimination. While intentional discriminatory treatment probably needs little explanation or examples at this point since it is the basis of almost all employment discrimination claims (and, in any event, is the subject of most of our blog reports), some folks ask the question, exactly what is “disparate impact” discrimination?

A good example of “disparate impact” discrimination can be found in two companion lawsuits just filed in Florida by the EEOC against the City of Jacksonville, and the Jacksonville Firefighters Local 122 of the International Association of Fire Fighters. The EEOC contends in the first case that the City put in place written examinations for the promotion of firefighters to four ranks which have a disproportionately adverse impact on black test takers; that is, they have a “disparate impact” on African-American candidates, and are not job-related or consistent with business necessity.

In the second case, the EEOC claims that the firefighters union knowingly negotiated this racially discriminatory promotional process with the City, thereby perpetuating a discriminatory process through collective bargaining.

Along with the City, the union is covered by Title VII, and the EEOC’s regional attorney in Miami stated that “We hope this lawsuit sends a clear message: Unions have a responsibility to oppose, not acquiesce in, racially discriminatory employment practices.”