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Excerpted From: Anonymous, Title VII Case: § 136:46. Disparate Impact Cases , 3 Employment Discrimination Coordinator § 136:46 (July 2020 Update) (21 Footnotes) (Full Document)
To make out a prima facie case of disparate impact under Title VII, a plaintiff must establish that a challenged employment practice caused a statistical disparity with respect to the number of protected class members in the workforce in comparison to the number of protected class members in the relevant labor market. In other words, a plaintiff must demonstrate not only the disparity, but also that the disparity is the result of the employment practice in question.
The Tenth Circuit has also stated that to establish a prima facie claim of disparate impact, a plaintiff must demonstrate that
(1) a specific identifiable employment practice or policy caused
(2) a significant disparate impact on a protected group.
The Third Circuit has said that to establish a prima facie case of disparate impact in a Title VII case, a plaintiff must
(1) identify a specific employment policy or practice of the employer and
(2) proffer evidence, typically statistical evidence,
(3) of a kind and degree sufficient to show that the practice in question has caused exclusion of applicants for jobs or promotions
(4) because of their membership in a protected group.
The Second Circuit has said that to make out a prima facie case of disparate impact, a plaintiff must
(1) identify a policy or practice,
(2) demonstrate that a disparity exists, and
(3) establish a causal relationship between the two.
Thus, statistical evidence of the disparity without evidence of a causal connection between the employment practice in question and the disparity is insufficient to establish a prima facie case of discrimination.
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