Discrimination Based on Disparate Impact

           Though it comes with unique difficulties and limitations as compared with other theories of discrimination, one of the ways in which a federal employee can make a case of discrimination is by showing disparate impact. A disparate impact claim must be brought separately from a disparate treatment claim.

In a disparate impact claim, an employee asserts that an agency practice or policy that appears neutral or nondiscriminatory on the surface more harshly impacts members of one protected group, race, gender, religion, age, disabled status, etc., than it does other groups. This is shown by bringing forth statistical evidence that establishes a statistical disparity or difference between the protected class and other groups that is directly connected to the policy or practice in question.

In making a case of disparate impact, an employee must: (1) identify the specific practice or policies at issue; (2) show statistical disparities between the protected class and other groups; and (3) show that the disparity is directly connected to the policy or practice in question. In response to this showing, the agency must show that the adverse impact was attributable to a “reasonable” factor other than membership in a protected group.

It is important to note, however, that compensatory damages are not available for cases of disparate impact under the Civil Rights Act of 1991, as disparate impact is not considered to be intentional discrimination and compensatory damages are only available for cases of intentional discrimination.

The EEO and MSPB attorneys at Melville Johnson, P.C. are highly experienced in matters such as these, and are willing and able to assist you in your federal employment legal matters.

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