A new federal lawsuit filed in Pennsylvania prompted us to re-visit the concept of “disparate impact” discrimination, which many employers are unfamiliar with.

What is “Disparate Impact” Discrimination?

Discrimination comes in two sizes – intentional discriminatory treatment, and “disparate impact” discrimination. Intentional discriminatory treatment probably needs little explanation or examples at this point since it is the basis of most employment discrimination claims (and, in any event, is the subject of most of our blog reports).  But exactly what is “disparate impact” discrimination?

While courts have often held that although a standardized test may be neutral and non-discriminatory on its face, and therefore demonstrate no discriminatory intent, nonetheless the impact of such a test may disproportionately fall upon members of a protected class, and therefore be found to be discriminatory.

Jacksonville and the Jacksonville Firefighters Local

A good example of “disparate impact” discrimination can be found in two companion lawsuits 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 contended in the first case that the City put in place written examinations for the promotion of firefighters to four ranks which had a disproportionately adverse impact on black test takers; that is, they had a “disparate impact” on African-American candidates, and were not job-related or consistent with business necessity.

firefighters : Fireman standing outdoors wearing helmet

The NCAA Lawsuit

On February 15, 2013 we wrote about a new Title VII lawsuit which alleged that the NCAA’s 2011 rule which permanently barred, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminated against African-Americans. The complaint alleged that “Policies that categorically exclude individuals with felony convictions are known to have a disparate impact on African-Americans. … African-Americans are arrested, charged and convicted of drug crimes at greater rates than whites, even though usage rates are similar.”

basketball coaches : Basketball coach

The New Lawsuit 

The Justice Department has just sued the PA state police alleging that it uses physical fitness tests to screen and select applicants for entry-level state police trooper positions which discriminate against women entry-level applicants.

From 2003 to 2008, as part of its entry-level selection process, the state police used five events to test for physical fitness: (1) a 300-meter run; (2) sit-ups; (3) push-ups; (4) a vertical jump; and (5) a 1.5-mile run.  Although the test on its face was neutral, nonetheless approximately 94% of male applicants passed while only approximately 71% of female applicants passed.   This difference between the pass rates of female and male applicants, it is alleged, is statistically significant.

fitness tests : Closeup portrait, beautiful, pretty young model woman flexing muscles showing displaying her gun show, isolated white background. Positive emotion facial expression feelings, attitude, perception

In 2009, the state police changed the test to included new elements, but the results were the same:  from 2009 to 2012 approximately 98% of male applicants passed, while only approximately 72% of female applicants passed.  Again, this is significantly significant, it is alleged.

The Justice Department’s suit claims that the use of the two tests “in the screening and selection of applicants for entry-level trooper positions … has resulted in a disparate impact upon female applicants for those positions. [The] use of both the 2003 and the 2009 [test] is not job-related for the entry-level trooper position, is not consistent with business necessity.”