Disparate Impact cases involve a policy or practice of an employer that disproportionaly affects people of a protected class.
CA FEHA Commission’s regulations state: “Where an employer or other covered entity has a facially neutral practice which has an adverse impact (i.e., is discriminatory in effect), the employer or other covered entity must prove that there exists an overriding legitimate business purpose such that the practice is necessary to the safe and efficient operation of the business and that the challenged practice effectively fulfills the business purpose it is supposed to serve. The practice may still be impermissible where it is shown that there exists an alternative practice which would accomplish the business purpose equally well with a lesser discriminatory impact.” (Cal. Code Regs., tit. 2, § 7286.7(b).)
The elements of a well pleaded disparate impact claim are:
- That defendant was an employer or other covered entity.
- That plaintiff was an employee of defendant;
- That defendant had n employment practice that had a disproportionate adverse effect on the protected group;
- That plaintiff is in the protected group;
- That plaintiff was harmed; and
- That defendant’s employment practice was a substantial factor in causing Plaintiff harm.
“A ‘disparate impact’ plaintiff … may prevail without proving intentional discrimination … [However,] a disparate impact plaintiff ‘must not merely prove circumstances raising an inference of discriminatory impact; he must prove the discriminatory impact at issue.’ ” ( Ibarbia v. Regents of the University of California (1987) 191 Cal.App.3d 1318, 1329-1330 [237 Cal.Rptr. 92] , quoting Lowe v. City of Monrovia (9th Cir. 1985) 775 F.2d 998, 1004 .)
Government Code section 12941.1 expresses the Legislature’s rejection of the opinion in Marks v. Loral Corp. (1997) 57 Cal.App.4th 30 and states, in part: “The Legislature declares its intent that the use of salary as the basis for differentiating between employees when terminating employment may be found to constitute age discrimination if use of that criterion adversely impacts older workers as a group, and further declares its intent that the disparate impact theory of proof may be used in claims of age discrimination.”
“To establish a prima facie case of discrimination, a plaintiff must show that the facially neutral employment practice had a significantly discriminatory impact. If that showing is made, the employer must then demonstrate that “any given requirement [has] a manifest relationship to the employment in question,” in order to avoid a finding of discrimination … Even in such a case, however, the plaintiff may prevail, if he shows that the employer was using the practice as a mere pretext for discrimination.’ ” ( City and County of San Francisco v. Fair Employment and Housing Com. (1987) 191 Cal.App.3d 976, 985 [236 Cal.Rptr. 716] , quoting Connecticut v. Teal (1982) 457 U.S. 440, 446-447 [102 S.Ct. 2525, 73 L.Ed.2d 130] , internal citation omitted.)
Under federal title VII, a plaintiff may establish an unlawful employment practice based on disparate impact in one of two ways: (1) the plaintiff demonstrates that a defendant uses a particular employment practice that causes a disparate impact on the basis of a protected status, and the defendant “fails to demonstrate that the challenged practice is job related for the position in question and consistent with business necessity”; or (2) the plaintiff demonstrates that there is an alternative employment practice with less adverse impact, and the defendant “refuses to adopt such alternative employment practice.” (42 U.S.C. § 2000e-2(k)(1)(A).)