Chapter § 11.24

• Jurisdiction: New York

[11.24] What is "adverse impact" discrimination?

Adverse impact claims (or disparate impact claims, as they are sometimes called) differ from disparate treatment claims, which involve differential treatment of two employees for discriminatory reasons (see § 11.20 supra).

Adverse impact claims typically challenge employment policies, procedures, or practices which, while apparently ("facially") neutral, have a disproportionately negative impact upon a protected class of individuals.⁹⁴ An adverse impact claim may exist when an applicant or an employee can demonstrate that an employer's selection process or minimum qualification standard for hiring, promotion, or layoff (such as a minimum educational requirement, physical abilities test score, height or weight cut-off, evaluation score, etc.) excludes a disproportionate number of protected group members as compared to the rate of exclusion of non-protected group members.⁹⁵

Adverse impact claims differ from disparate treatment claims in that there is no need to show that the employer had a discriminatory motive in order for liability to result. For this reason, adverse impact claims are sometimes referred to as "unintentional discrimination" cases. The courts will apply the adverse impact theory in appropriate situations, even where the challenged selection process or employment criteria include both objective elements (e.g. standardized tests) and subjective elements (e.g. personal interviews), if the process results in protected group members being treated less favorably...