Unintentional discrimination, also referred to as “indirect discrimination,” occurs when policies, practices, rules, or procedures appear neutral and non-discriminatory on their surface but have a discriminatory impact in practice. It happens when decisions or actions, even though not meant to discriminate, end up having a disadvantageous effect on a group protected under anti-discrimination laws.
These laws typically cover groups characterized by race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.
Even though the person or entity committing unintentional discrimination may not have a deliberate intent to discriminate, under many jurisdictions, this form of discrimination is nonetheless unlawful if it has a disparate impact on protected groups and cannot be justified as a business necessity or if there’s a less discriminatory alternative that serves the same purpose.
What Are Some Examples of Unintentional Discrimination in the Workplace?
Examples of unintentional discrimination in the workplace are listed below.
Hiring Practices
Suppose a company has a hiring policy requiring that all applicants have a specific degree. If this requirement is not directly related to the job or necessary for conducting the business and disproportionately excludes people of a certain race or color, it could constitute unintentional discrimination.
Language Requirements
If a business requires employees to speak fluent English at all times, even when not interacting with customers or doing business, this could indirectly discriminate against employees whose native language is not English. Even though the policy itself does not explicitly discriminate based on national origin, it is still considered discriminatory.
Physical Requirements
A job that requires heavy lifting or other physical abilities may unintentionally discriminate against certain groups. For example, it could disproportionately affect women or individuals with physical disabilities if these requirements are not a necessary part of the job and reasonable accommodations could be made.
Uniform or Dress Code Policies
Rules about appearance, such as a ban on beards or certain hairstyles, can unintentionally discriminate. If such a policy disproportionately affects people of certain religions, races, or individuals with certain medical conditions, it could be seen as a form of indirect discrimination.
Workplace Policies and Practices
A company might have a policy of not promoting employees who have not been in their current role for more than five years. If this disproportionately affects younger workers or certain racial or ethnic groups, it could be considered unintentional discrimination.
Disparate Impact
The legal concept of disparate impact is also known as adverse impact. This refers to a doctrine under U.S. employment law where practices in employment, housing, or other areas may be considered discriminatory and illegal if they have a disproportionate adverse impact on members of a minority group.
According to this doctrine, a violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy, though neutral on the face of it, has a discriminatory effect. Importantly, a claim of disparate impact doesn’t require proof of the employer’s intent to discriminate.
Can the Employer Be Liable Even if It Doesn’t Intend to Discriminate?
Yes, an employer can be held liable for discrimination even if they did not intend to discriminate. This concept is central to the idea of “unintentional discrimination” or “indirect discrimination.”
Under Title VII of the Civil Rights Act of 1964 and various other anti-discrimination laws, it is not the employer’s intent that matters but the impact of their policies or practices. Say a policy or practice disproportionately negatively impacts individuals of a protected group and cannot be justified by business necessity or does not constitute a bona fide occupational qualification. In that case, the employer can be held liable for discrimination.
Can an Employer Defend Its Policy?
Yes, employers can defend their policies in certain situations, even if those policies result in unintentional discrimination or disparate impact. Here are the typical defenses:
Business Necessity
The employer can assert that a specific policy or practice, even though it has a disparate impact, is a business necessity. In this case, the employer argues that the policy or practice is necessary for the safe and efficient operation of the business. However, it’s important to note that to rely on this defense, the employer must demonstrate that there are no alternative policies or practices that would achieve the same business goal without resulting in a discriminatory effect.
Job Relatedness
This is a specific instance of business necessity. The employer must demonstrate that a policy or practice, while having a disparate impact, is related to the job in question and important for the performance of the job.
Bona Fide Occupational Qualification (BFOQ)
In some rare instances, employers may argue that a certain characteristic (like age, religion, sex, or national origin) is a “bona fide occupational qualification” necessary to perform the job. The use of BFOQs as a defense is quite restricted and does not cover race or color.
What About Tests for Screening Job Applicants?
Certain tests can lead to unintentional discrimination. For instance, if an employer uses a cognitive ability test, a physical fitness test, or a personality test that disproportionately screens out applicants from a particular group protected by anti-discrimination laws, this could result in a disparate impact.
Employers can sometimes defend the use of these tests by demonstrating their business necessity. They need to show that the test is job-related and consistent with business necessity, meaning the test accurately measures the ability to perform the job’s essential functions. If a less discriminatory alternative exists that serves the employer’s goals, the employer may be required to use that instead.
For example, if a strength test screens out many female applicants for a job, but a test of actual job tasks does not and still identifies qualified candidates, the employer might need to use the latter test.
In any case, employers must be prepared to justify their employment practices should they result in a disparate impact, and they must regularly review and update their policies and practices to minimize discrimination. Employers are also encouraged to provide reasonable accommodations where necessary, for instance, for employees with disabilities or religious practices that require some form of accommodation.
How Do I Prove That a Policy or Criterion is Discriminatory?
To prove that a policy or criterion is discriminatory, you must generally demonstrate the following:
- Disparate Impact: You must prove that the policy or practice disproportionately affects a protected group. Typically, this involves statistical analysis demonstrating that the impact on the protected group is significantly higher than on other groups.
- The Employer’s Defense: If the employer can justify the policy or practice by demonstrating it’s a business necessity or a BFOQ, you must be able to show that there are other ways the employer could achieve the same result without the discriminatory effect.
A “right to sue” letter is a document issued by the Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing anti-discrimination laws. After a complaint is filed with the EEOC and they have concluded their investigation, they issue this letter, which gives the complainant the right to sue the employer in court.
Do I Need a Lawyer for My Discrimination Claim?
If you believe you’ve been a victim of discrimination, it’s highly recommended that you consult with an attorney. The laws governing discrimination are complex, and proving discrimination can be challenging. A lawyer can help you understand your rights, guide you through the process, advise you on your best course of action, and represent you in interactions with your employer, the EEOC, or in court.
To find a qualified attorney, you can use LegalMatch. You simply present your case, and LegalMatch uses its unique matching system to quickly connect you with the right discrimination lawyer. With LegalMatch, you can be confident you’ll find an experienced attorney who’s committed to helping you resolve your discrimination claim.
