Do you have to prove that religious discrimination was intentional?

On Behalf of | Mar 29, 2024 | Employment Law

Many employment discrimination cases involve employers who treat some workers worse than others because of their race, sex, national origin, religion or other protected characteristics. When workers take legal action against these employers, they must prove that the discrimination was due to the workers’ protected status. In other words, they must prove that the illegal discrimination was intentional.

In some cases, this is relatively straightforward: The workers may have lots of evidence documenting times the employer used racial slurs or other derogatory language.

In other cases, it can be quite difficult to prove exactly why the employer treated some workers worse than others.

What is disparate impact discrimination?

However, there are some types of discrimination claims in which the workers don’t have to prove that the discrimination was intentional. One such type is known as disparate impact discrimination.

In a case alleging disparate impact discrimination, the plaintiff doesn’t have to prove that the discrimination was intentional. Instead, they must prove that an employer’s policy had a discriminatory effect.

Burden-shifting

A disparate impact claim might involve an employer who implements a policy that requires all new hires to be able to work on Saturdays. Orthodox Jews cannot work on Saturdays for religious reasons, and so no Orthodox Jews are hired under the policy.

Now let’s say an otherwise qualified worker who is an Orthodox Jew is rejected by the employer because of the policy. If she were to file a disparate impact  provide evidence that, because of the policy, the employer hired no Orthodox Jews who applied for jobs.

At this point, the burden of proof shifts to the employer. The employer must prove that it had a good, nondiscriminatory reason for the policy. For example, the employer may be a retailer that is only open on weekends. In such a case, a court might find that the employer had a legitimate, nondiscriminatory reason for the policy.

Are these cases easier or harder?

Compared to intentional cases, disparate impact cases are easier for the plaintiff in some ways and harder in others. They’re easier because the plaintiff doesn’t have to prove what the employer was really thinking. They’re harder because the plaintiff has to document all the ways the employer’s policy affected workers, and they must overcome the employer’s arguments that the policy was justified.

Workers who feel they’ve been unlawfully discriminated against can talk to experienced professionals to learn more about how the law might apply to their exact circumstances.

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