Individual employees can still sue under federal law
Recently, the federal agency responsible for enforcing anti-discrimination laws announced a big policy change: it will no longer enforce disparate impact discrimination claims. What does that mean for workers?
The short answer: while this changes what the federal government is doing, it doesn’t actually change your legal rights. Here’s why.
Explaining the EEOC’s new policy
The federal Equal Employment Opportunity Commission (EEOC) is charged with enforcing federal anti-discrimination laws, including Title VII of the Civil Rights Act, the Age Discrimination in Employment Act (ADEA), the Equal Pay Act (EPA), and the Americans with Disabilities Act (ADA). Like any other federal agency, the EEOC may change its enforcement priorities when a new presidential administration comes into power and changes the agency’s leadership.
As the Associated Press recently reported, the EEOC has decided to discharge any employee complaints based on “disparate impact liability.” That means the agency will no longer enforce restrictions on employer policies that appear to be neutral but disproportionately exclude workers based on race, gender, or other legally protected characteristics.
What are disparate impact claims?
Federal law prohibiting employment discrimination applies not just to intentional discrimination (e.g., firing someone because of their race), but also the use of employment practices that lead to discriminatory results. For example, if an employer uses a test to screen job applicants, and it turns out that men consistently perform better than women on that test, the employer may face disparate impact liability.
Disparate impact claims have been around for a long time, but they’re potentially more relevant than ever today with the rise of automated, AI-powered tools in hiring and promotion decisions. It is very difficult, if not impossible, to prove that a computer algorithm intentionally discriminates on the basis of race, sex, age, or disability. But it is potentially much easier to prove that the results produced by the computer algorithm result in more opportunities for people of one race or sex than another.
Just because an employment practice has a disparate impact doesn’t mean the employer has illegally discriminated. The employer has the opportunity to prove that the test or other employment practice is sufficiently job-related to justify its use, even if it has a disparate impact. Then, the employee has the opportunity to show that there is a less discriminatory practice that would serve the same purpose.
How the EEOC’s policy affects your legal rights
In most cases, a victim of alleged employment discrimination is required to file a charge with the EEOC before going to court to enforce their rights. The EEOC may determine that the employer discriminated or didn’t discriminate. The EEOC may also not take action at all. Either way, the EEOC will issue a Notice of Right to Sue, which means the employee now has the right to sue their employer in federal court.
Under the new policy, it appears that the EEOC won’t bother investigating disparate impact claims. However, employees’ individual rights have not changed. Even if the EEOC refuses to investigate your claim, you can still go to federal court, where courts are still enforcing the disparate impact laws.
The key is to get legal representation as soon as possible.
Contact Gibson Law, LLC to review your potential legal options
Tight deadlines apply to employment discrimination claims, and the sooner you have an experienced attorney on your side, the more effectively we’ll be able to protect your rights.
If you believe you were discriminated against at work, contact Gibson Law, LLC today for a free case evaluation.
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