What is Disparate Impact Discrimination?

 Posted on January 12, 2026 in Discrimination & Retaliation

Most employers know that intentionally discriminating against workers based on race, sex, religion, or other protected characteristics is illegal. This kind of discrimination has been against federal law for decades. But employment discrimination does not have to happen on purpose to be illegal.

An important idea called "disparate impact" allows workers to hold employers responsible for illegal discrimination – without proving the employer actually meant to discriminate. Instead, workers must show that an employer's policy has a discriminatory effect on one group of protected workers. This is part of Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination.

Disparate impact cases are important but difficult. If you are wondering whether you have a case, schedule a consultation with our Virginia and Maryland employment discrimination attorney. 

How Does Disparate Impact Discrimination Work?

A classic example of disparate impact involves an employer that requires all employees to be at least 5 feet 9 inches tall. The company announces it will not hire any new workers shorter than 5 feet 9 inches, and existing employees under that height will not receive promotions.

On its face, this policy appears to apply evenly to all workers. In practice, however, it has a disparate impact on women because women are statistically less likely to meet the height requirement than men.

The employer may have created the policy to reduce the number of women employees, or they may have had a different reason and never considered the effect. Under disparate impact theory, the employer's intent does not matter. What matters is the effect the policy creates.

Other common examples include:

• Requiring degrees not necessary for the job

• Tests that screen out certain racial groups without predicting job performance

• Scheduling requirements that exclude workers with certain religious practices

What Legal Standards Apply to Disparate Impact Claims?

When a worker brings a disparate impact claim, courts use a three-step process. 

Does the Policy Create a Significant Statistical Disparity?

First, the worker must show that a specific employment practice causes a significant statistical disparity affecting a protected group. The worker needs to identify the exact policy creating the problem and give evidence of its discriminatory effect.

Is There a Legitimate Business Reason for the Policy?

If the worker proves disparate impact, the burden shifts to the employer. The employer must prove the policy is job-related and consistent with business necessity. This means showing a legitimate business reason that directly relates to job performance or safety.

Could Other Arrangements Work Just as Well? 

Een if the employer proves business necessity, the worker can still win by showing that a different policy would serve the employer's needs. If an alternative exists, the original policy may still be illegal.

This framework comes from the Supreme Court's decision in Griggs v. Duke Power Co. and was later codified in the Civil Rights Act of 1991. These protections apply to hiring, promotions, pay, terminations, and other employment decisions.

Why Is Disparate Impact Important for Workers?

Disparate impact theory protects workers in several important ways. It makes discrimination cases easier to prove because evidence of intent is often very difficult to find. Employers know they should not intentionally discriminate, so they rarely create evidence showing that they mean to discriminate. 

Many employers do not realize their policies are discriminatory. They may believe a policy is neutral and fair when it actually creates unfair barriers for certain workers. Disparate impact theory holds these employers accountable regardless of their intentions, helping make workplaces fairer for everyone.

This legal protection also prevents employers from using neutral-sounding policies to hide discriminatory purposes. Without disparate impact theory, an employer could easily avoid discrimination laws by creating policies that look fair but actually exclude protected groups.

Call a Maryland Employment Law Attorney Today

If you believe your employer has policies that discriminate against you or other workers based on protected characteristics, you may have a claim. These cases can be complicated, and having the right lawyer matters.

Our Virginia employment lawyer at Freedman Law, LLC represents employees in state and federal court. We offer hands-on representation with reasonable fees and are available 24/7 to discuss your situation. Call Freedman Law, LLC at 410-290-6232.