Blog Post

Actionable Discrimination is not Always Intentional

Pepsi Beverages recently settled a matter with the federal government for $3.13 million which serves as a reminder that not all issues of employment discrimination are based on intentional conduct.  Pepsi required its candidates for employment to undergo a criminal background check.  Candidates who had been arrested or convicted were denied employment.  Pepsi’s policy, while neutral on its face, had an adverse impact on African-Americans as applied since it disproportionately excluded them from employment.  In addition, the policy had no relevance to the positions sought.  This is known as disparate impact discrimination and is equally actionable as intentional forms of discrimination, known as disparate treatment.

The foregoing is a reminder to employers to strongly consider the potential impact and consequences of their policies, particularly those that deal with qualifications and eligibility for employment.  They should also analyze whether such requirements are pertinent to the job functions to be performed by employees.  Requirements such as height, weight, dress, grooming, and ability to lift a certain amount of weight can all have adverse impacts on particular groups of people and should be scrutinized.  In this regard, employers should have their employment policies and requirements reviewed on a regular basis to ensure necessity of the policies and requirements, as well as compliance with the relevant employment laws.

It is also a reminder to employees that they do not need to prove that their employer intentionally sought to exclude them or remove them as a result of a protected category.  In order to establish an adverse impact, however, the employee will need to generally obtain statistics showing that a statistically significant number of persons in the protected category are excluded when compared to the number of persons outside of the protected category who are also excluded.  To demonstrate statistical significance, moreover, a statistics expert may become necessary.  So, while intent is not necessary, it could prove to be more onerous to demonstrate disparate impact than disparate treatment.