Disparate effect is the quieter cousin of disparate treatment in discrimination law. It doesn't require showing that anyone intended to discriminate, which means employers can end up liable for policies they designed in good faith. The classic example is a hiring test that looks neutral but excludes a disproportionate share of one protected group because of differences unrelated to job performance. Employers who run their policies and practices through a disparate-effect lens find problems before plaintiffs do; those who don't often learn about them from an EEOC charge or a class action.
The Griggs Framework and Burden-Shifting The framework from Griggs v. Duke Power Co. and later Title VII amendments follows three steps. First, the plaintiff or plaintiff class shows that a specific employment practice caused a significantly disparate impact on a protected group. Statistical evidence is typical here: the 80% rule (selection rate for any group less than 80% of the rate for the highest-selecting group) is a rough screen the EEOC uses. Second, the employer must show the practice is job-related and consistent with business necessity. Third, even if the employer meets the business-necessity burden, the plaintiff can still win by showing an alternative practice exists that would serve the same legitimate business purpose with less disparate impact.
Each step has its own evidentiary burden and its own legal standards. The intent-agnostic nature of the theory makes it a powerful tool for plaintiffs in systemic cases.
Where Disparate-Effect Claims Actually Come From Common policies that produce disparate-impact challenges. Cognitive or personality tests with different pass rates across demographic groups. Education requirements that exclude disproportionately from lower-income or first-generation populations. Criminal-history screens that disproportionately exclude certain racial groups given underlying justice-system disparities. Credit-history screens. Height, weight, or physical ability requirements that exclude women or certain ethnic groups. Each of these is actionable if the policy has disparate impact and the employer can't demonstrate job-related necessity.
What's a Business Necessity Defense? The practice must be job-related for the position and consistent with business necessity. Generic claims (the test predicts general intelligence) usually fail. Specific claims (the test validly predicts performance in this particular role) sometimes succeed, especially with validation studies. Employers who use pre-employment assessments should validate them against actual job performance data and document the analysis.
Running Disparate-Effect Analysis Proactively Proactive analysis beats reactive defense. Run adverse-impact analysis on hiring, promotion, and discipline decisions annually: compare selection rates across protected groups, flag anything under the 80% threshold, and investigate whether the underlying practice is job-related. Review third-party assessment tools for documented validation studies before purchasing. Pay attention to the cumulative effect of multiple screening criteria, because each step can compound disparate impact. And keep a written record of the analysis, because in litigation the absence of any proactive review looks worse than finding and addressing problems.
Building a Workplace That Doesn't Produce Disparate Effect Beyond defensive analysis, good disparate-effect prevention means designing policies that work for the whole workforce. Use structured interviews with standardized evaluation criteria rather than unstructured chemistry checks. Use skill-based assessments validated for the specific role. Apply criminal-history screens narrowly and only after an individualized assessment. Track outcomes across protected groups as part of the standard HR dashboard. Tools that centralize data (including HR case management platforms) help spot disparate-effect patterns before they become EEOC charges. The employee relations and compliance functions both benefit from data visibility, because disparate effect shows up first in the numbers and only later in the complaints.
The EEOC publishes the Uniform Guidelines on Employee Selection Procedures and the 80% rule at eeoc.gov . The Department of Labor's Office of Federal Contract Compliance Programs publishes adverse-impact guidance for federal contractors at dol.gov/agencies/ofccp .
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