Adverse impact is defined as a substantially different rate of selection in hiring, promotion, or other employment decision which works to the disadvantage of members of a race, sex, or ethnic group.
A “substantially different” rate is typically defined using the 80% rule, which means when the selection rate for a minority group is lower than 80% of the selection rate for the majority group, there is considered to be a substantial difference. Employment practices could be considered discriminatory and illegal if they have a disproportionate “adverse impact” on members of a minority group as compared with non-members of the minority group.
However, the presence of adverse impact does not necessarily suggest discriminatory practices and may be due to statistical chance or random individual differences. If adverse impact is present, a practice is still legally defensible if it is: 1) highly job-related or a bona fide job qualification, and 2) the most reasonable and viable practice for making an employment decision in your business context–but such a legal defense requires you to document evidence that your practice is job-related and the best alternative available.
We can help you examine your employment decisions and practices and document the evidence you need to increase their effectiveness and become legally defensible. Contact us (using the form below):