In the U.S., employees and candidates for employment may only be evaluated for employment decisions (e.g. hirings, firings, promotions) based on their ability to perform job-related duties. Congress has prohibited employers from considering immutable factors like race, gender, and age while making employment decisions.
Most Americans know that intentional employment discrimination creates liability for an employer. This accountability is maintained through proceedings known as “disparate treatment” claims in which an employee charges an employer with discrimination and then has to prove that the employer overtly discriminated. In addition to disparate treatment claims, demographic groups, which Congress has deemed “protected,” like racial minorities, females and older workers, are also authorized to file claims against employers for unintentional discrimination.
Claims of unintentional discrimination, known as “disparate impact,” use statistical evidence to demonstrate that a protected trait factored into an employer’s decision-making — either consciously or subconsciously — even without any objective evidence of discriminatory intent. If a protected worker can show that an employer used a specific employment policy or practice within the decision-making process, which resulted in members of a protected class being less successful than unprotected workers (i.e.“adversely impacted”), the employer may be liable for discrimination.