For generations, state, local and federal laws have prohibited certain types of discrimination in the workplace, and yet we continue to hear about new examples of unlawful discrimination in Oregon workplaces. It happens all too frequently.
What is going on? Are employers just not taking the law seriously enough?
In some cases, yes, employers are simply breaking the law and hoping they don’t get caught. When workers take legal action against these employers, one of the most challenging issues they have is proving that the employer intended to discriminate.
In other cases, there is something more subtle going on. In some cases, even the employers themselves may not realize that what they are doing is discriminatory. This is sometimes the story in employment discrimination actions based on the theory of disparate impact.
What is disparate impact?
Put simply, disparate impact refers to situations in which an employer takes an action that appears to treat every worker equally, but in practice is illegally discriminatory because it has a negative effect only on certain workers because of their protected characteristics.
For example, imagine a manager at a large warehouse who tells all employees they must be available to work on Saturdays. Because the policy applies to all employees, it seems to be fair. But in practice, the policy negatively affects only those employees whose religion requires them to take Saturday as a day of rest. While the policy may seem neutral on the surface, it has a disparate impact on those employees.
These employees, who are Orthodox Jews or Seventh-Day Adventists, must either break their religious traditions or quit their jobs. They may argue that the policy amounts to discrimination on the basis of religion, which is illegal. The workers don’t need to prove that the manager intended to discriminate against Orthodox Jews or Seventh-Day Adventists, only that the policy’s disparate impact resulted in unlawful discrimination.
Employers have the right to a defense. In a disparate impact case, an employer can argue that it had a legitimate, nondiscriminatory reason for the disputed action.
For example, let’s imagine a workplace policy that requires all employees to be able to lift 75-pound boxes. This policy appears neutral on its face, but could have a disparate impact on certain classes of workers, particularly older people and disabled people. Thus, the policy could be illegal discrimination on the basis of age or disability.
If, however, the employer has a legitimate reason for the policy, it may have a valid defense. To give a somewhat oversimplified example, perhaps the employer is a fire department and the job involves the ability to carry heavy equipment — and sometimes carrying people to safety. In such a case, the employer might have a legitimate reason for the policy.
Here, we should note that disability discrimination law generally requires employers to provide reasonable accommodations for employees who become partially physically disabled. If an employer has a legitimate reason for requiring workers to be able to lift 75 pounds, and one employee loses their ability to do so, the employer can reasonably accommodate the employee’s needs by assigning them to a different job or providing them with an alternative means of lifting the weights.