TTI TriMetrix HD Adverse Impact Study
What is Adverse Impact and/or Disparate Impact?
Under the Disparate Impact rule, an employer may not use an employment practice (e.g., a pre-employment aptitude test) that, even though neutral on its face and applied to all applicants or employees, disproportionately excludes members of a protected category. An employer can defend its reliance on such an employment practice only if the employer proves that the challenged practice is job related for the position in question and consistent with business necessity.
Applicants for employment, promotion, or other employment benefits who challenge the denial of the benefit to them will have to prove that the specific employment practice at issue has a disparate impact, unless the applicant proves that the elements of the employer's decision-making process are not capable of separation for analysis, in which case the entire decision-making process may be analyzed as one employment practice.
The Equal Employment Opportunity Commission (EEOC) has long advocated the "80 percent" rule to assess when a particular employment practice has an unlawful disparate impact. Some standard is necessary because all employment criteria will exclude some applicants or employees.