There are two basic types of illegal discrimination: intentional bias and “disparate impact” discrimination. The second type of discrimination can be intentional, but it need not be. It is a type of discrimination where unnecessary employment barriers are put in the way of certain classes of people.
A classic example of disparate impact discrimination is the “unnecessary height requirement.” A police department, for example, might wish to require all officers to be at least six feet tall. Even if the intent were neutral, such a requirement could be discriminatory if it unduly burdened one class of worker over another and served no objective, job-based need. Indeed, employee height requirements have often been found to cause a disparate impact against women.
Unless there is something specific in the job that requires such tall workers, that disparate impact is unlawful. Moreover, even if there were an objective need for the requirement, it would still be considered discriminatory if there were an alternative practice that could meet that need without the disparate impact.
Gender discrimination throughout the company
The Equal Employment Opportunity Commission recently obtained a $3.2-million settlement in a disparate impact case. It was brought against the railroad CSX Transportation (CSXT) and alleged company-wide gender discrimination.
The facts are strikingly similar to the police height example.
According to the EEOC, CSXT put several pointless barriers in the way of female job applicants. One was an isokinetic strength test called the “IPCS biodex” test, which was required of people seeking jobs as train conductors, clerks, material handlers and a number of other jobs. Other tests included a three-minute step test meant to measure the applicant’s aerobic capacity and an arm endurance test.
Apparently, these tests were administered neutrally to all applicants, but they had a disparate impact on women. The EEOC did not allege that CSXT intentionally discriminated against women, but the company was unable to show that the tests were necessary to determine the applicants’ ability to perform these jobs. Why would a potential clerk, for example, need to be tested for strength, aerobic capacity and endurance?
Women in 20 states were affected
The EEOC filed suit against CSXT and the company agreed to settle. As a result of that settlement, CSXT has agreed to pay $3.2 million into a settlement fund for affected women in 20 states.
CSXT has also signed a consent decree requiring it to cease using the specified physical tests in hiring and to hire expert consultants to scientifically study what, if any, physical tests are actually necessary for job applicants to pass. These tests must be narrowly tailored to limit the disparate impact against women and other classes of job applicants who might be affected.