Legal Definitions - disparate impact

Disparate impact refers to a legal concept where a policy, rule, or practice that appears neutral and applies equally to everyone, nonetheless has a significantly negative and disproportionate effect on a particular group of people who are protected by anti-discrimination laws (such as those based on race, gender, age, religion, national origin, or disability).

Crucially, this negative effect is unintentional and not a result of deliberate discrimination. For a practice to be considered disparate impact, it must also not be justified by a legitimate business necessity or a compelling public interest that cannot be achieved through less discriminatory means.

Here are some examples to illustrate:

• Example 1: Employment Physical Requirements

  A city fire department implements a new physical fitness test for all aspiring firefighters. One component requires applicants to carry a 100-pound dummy for 50 feet in under 30 seconds. While this requirement is applied uniformly to all candidates, statistical analysis reveals that a significantly higher percentage of female applicants fail this specific component compared to male applicants, even though many women successfully complete all other parts of the test and possess the necessary skills for the job.

  How it illustrates disparate impact: The policy (the 100-pound dummy carry) is facially neutral, applying to everyone. However, it has a disproportionate negative impact on a protected class (women). If the fire department cannot demonstrate that this exact strength requirement is a true business necessity for the job and that less strenuous but equally effective alternatives exist to assess job-related strength, it could be considered disparate impact.

• Example 2: Housing Application Fees

  A large apartment complex requires all prospective tenants to pay a non-refundable application fee of $200 per adult. This fee is applied uniformly to everyone who applies. However, the complex is located in an area with a high concentration of recent immigrants and low-income families, many of whom are from a specific national origin group. Data shows that this high, non-refundable fee disproportionately deters applicants from this particular national origin group and low-income individuals from applying, even if they would otherwise qualify for the housing.

  How it illustrates disparate impact: The application fee is a neutral policy. Yet, it creates a disproportionate barrier for a protected class (individuals of a certain national origin or low-income status, which can correlate with protected characteristics). If the landlord cannot demonstrate a strong business necessity for such a high, non-refundable fee (e.g., it's not simply to cover administrative costs but to screen out applicants based on ability to pay, which indirectly impacts protected groups), it could be challenged as disparate impact.

• Example 3: Educational Program Scheduling

  A community college offers a specialized certification program that requires all classes to be attended in person, Monday through Friday, from 9:00 AM to 5:00 PM. This schedule is applied to all students. However, this rigid daytime schedule disproportionately excludes single parents, particularly single mothers, and individuals with certain disabilities who rely on fixed-hour caregivers or have limited flexibility due to medical appointments, from enrolling in the program, even if they are otherwise qualified and eager to participate.

  How it illustrates disparate impact: The fixed, full-time daytime schedule is a neutral policy. However, it has a disproportionate negative effect on protected classes such as single parents (often women) and individuals with disabilities. If the college cannot demonstrate a compelling educational necessity for *all* components of the program to be delivered exclusively during these hours, and that alternative scheduling options (e.g., evening classes, hybrid formats) are not feasible, this policy could be seen as having a disparate impact.