Disparate Impact

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Discrimination may occur because of the disparate treatment of persons or because actions result in a disparate impact upon different people. E-Z Loader Boat Trailers, Inc. v. Travelers Indem. Co., 106 Wn.2d 901, 909, 726 P.2d 439 (Wash. 1986).


To prove “disparate treatment” a plaintiff must show that an employer treated an individual employee or group of employees differently because of sex, race, age, religion or some other improper differentiation (i.e., protected class). See id. (citing International Bhd. of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977); [s]ee also Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981)) (internal hyperlink added). This is what most people envision when they think of employment discrimination. But discrimination can also occur in the form of disparate impact.


To prove a “disparate impact” from discrimination upon a person or group of persons, a plaintiff must show that an employment practice, which was facially neutral, resulted in discrimination against persons because of their age, sex or other improper distinction. Id. (citing Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971). See Fahn v. Cowlitz Cy, 93 Wash.2d 368, 610 P.2d 857 (1980); Stieler v. Spokane Sch. Dist. 81, 88 Wash.2d 68, 558 P.2d 198 (1977)). For example, in Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193 (Wash. 2014), an employer’s meal policy that was based on security concerns barred employees from bringing in their own food for lunch; and it required employees to eat only employer-provided food. However, the policy forced a group of plaintiff-employees to either work without food or eat food that violated their religious beliefs (a protected class).  The plaintiffs subsequently filed suit and alleged that the employer maintained a facially neutral meal policy that fell more harshly on those within a protected class; and the court found a viable claim of disparate impact discrimination–reversing the trial court’s previous dismissal and remanding the case for further proceeding consistent with the opinion.

Overall, the message here is that there is a tangible difference between disparate treatment and disparate impact discrimination and each can provide a basis for relief under Washington law.