Job Description Alert—Disparate Impact Lawsuit Lurking

For a more detailed explanation, we turned to BLR/HRhero’s HR Guide to Employment Law, written in part by Desmond, who is a Partner in the New Orleans, Louisiana office of Jackson Lewis LLP.

You could set yourself up for a disparate impact suit, Desmond says, if :

• Your listed requirements on the job description are not necessary for the job, and
• They disqualify those in a protected class at a disproportionate rate.

Disparate impact is used to show that discrimination entered into the hiring process even though that was not the intention. The law prohibits intentional and unintentional discrimination.

Thus, says Desmond, even if your practices and procedures are not overtly discriminatory, and not intentionally discriminatory, they may still violate the law if they exclude members of a protected class disproportionately from those in a non-protected class.

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Example:

Ms. Smith wants to be a correctional officer for the state penitentiary more than anything else in the world. She’s been dreaming of it since she was 12. Unfortunately, she can’t meet the state’s requirement that all applicants be at least 5’2” tall (nor can 33 percent of the women in the United States). Ms. Smith also can’t meet the state’s requirement that all applicants weigh at least 120 pounds (nor can 22 percent of the women in the United States).

Men, however, meet the requirements easily, as only 12.28 percent are excluded by the height requirement, and only 2.35 percent are excluded by the weight requiremenrt.

Ms. Smith sued, and the court found that the height and weight requirements violated title VII, as they excluded women disproportionately as compared to men.

(In the actual case, the court found that Ms. Smith was properly excluded from the job, as she was unable to pass a third test for applicants–a strength test.)

One of the morals of this case is that employers must be careful to distinguish between stereotypes and true necessities, Desmond notes. In the example, while it was clearly a necessity for correctional officers to be able to demonstrate a certain amount of strength, it was stereotypical to assume that all individuals who did not meet certain height or weight restrictions could not pass the strength test.

(The state was lucky here. Had the strength test not been part of the process, the suit might well have succeded.)

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What Can You Do?

To avoid legal hassles related to hiring restrictions, make sure that any job requirements you set are job-related and reasonable. Employers have gotten in trouble when they:

• Set a requirement that isn’t the best way to measure fitness for the job (as in the example above, where arbitrary height and weight restrictions weren’t as good a measure as the strength test).

• Set a requirement that the actual job doesn’t require (for example, “must be able to lift 50 pounds,” but no one on the job ever has to lift more than 20 pounds. Or, the task of lifting fifty pounds is so rare, that someone in the job could easily seek help once a quarter to lift the heavy weight.)

In tomorrow’s Advisor, more on writing meaningful job descriptions, plus an introduction to the SmartJobs program.