Disparate impact discrimination

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

Oops .. we got scooped!  Thankfully it was by my friend Judy Greenwald over at Business Insurance who called to ask me about the new decision just out of the federal court in Maryland which castigated the EEOC in a criminal background check case.  I sheepishly confessed that I had not yet seen it —

A new federal Title VII lawsuit was just filed in California alleging that the NCAA’s 2011 rule which permanently bars, among other things, convicted felons from coaching in NCAA-certified tournaments, discriminates against African-Americans.  See Hardie v. National Collegiate Athletic Association et al, 3:13-cv-00346 (S.D. Ca).

The complaint alleges that “Policies that categorically exclude individuals with