EQUAL EMPLOYMENT OPPORTUNITY FOR EMPLOYEES Overview Page 2 of 16 Course Table of Contents

LEGAL THEORIES FOR DETERMINING DISCRIMINATION UNDER EEO LAWS (continued)

Adverse Impact (Difference in Effect or Impact) occurs if an employer has a policy that is neutral on its face (example: all employees must be six feet tall) but has a disproportionate effect or impact on the Complainant's class. For such a policy to stand, the employer must be able to justify such a policy by citing a legitimate business necessity or that a bona fide occupational qualification (BFOQ) exists.

In order to determine if a difference in treatment has occurred, the following elements of proof must be reviewed:

1. Whether the respondent has a facially neutral employment policy or practice that has affected the charging party;
2. Whether the employment policy or practice operates to disproportionately exclude members of the covered class;
3. Whether the policy or practice is a business necessity;
4. Whether there is an effective business alternative with less disparate impact.

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