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Disparate impact: Hidden discrimination

On Behalf of | Oct 21, 2022 | Discrimination

Colorado employers today know they are not supposed to discriminate against workers on the basis of race, sex, religion, sexual orientation and other protected categories, but they sometimes do. In some cases, they find a way to hide their discriminatory motives. In some cases, they might not even realize what they are doing is discriminatory.

Both these scenarios can apply to a type of employment discrimination known as disparate impact.

What is disparate impact discrimination?

Disparate impact is a form of evidence that can show discrimination.

If you were the victim of unlawful discrimination in the workplace, you need evidence to build your case. Of course, this part of your case might be easier if you had direct evidence of discriminatory intent. For instance, if you had an audio recording of your former boss saying she fired you because she didn’t like people of your religion, this would be very strong evidence.

But in most cases, the evidence is not so clear. This is why disparate impact evidence is important in many cases.

If you can show that your employer applied a policy to all employees, but that this policy had a disparate impact on employees who are members of a protected class, then you can show that your employer engaged in unlawful discrimination.

To give a simple example, imagine a workplace where the employer requires all employees to be over six feet tall. The policy is equally applied, but since men are, on average, taller than women, women are much less likely to meet the requirement. The policy may seem equal, but it has a disparate impact on women workers because of their sex.


A key point about disparate impact evidence is that the plaintiff doesn’t have to show that the discrimination was intentional. It’s enough to show that the impact was discriminatory.

However, the employer can defend itself by showing that it had a legitimate reason for the policy. For instance, in the example of the height requirement, an employer may show that something about the work duties required workers to be six feet tall or taller.

As you might imagine, these cases can be complicated, and outcomes can vary greatly according to the specific facts of each case. Workers who suspect discrimination can speak to employment law attorneys to learn more about how the law might apply to the specific facts of their case.