Disparate impact claim does not require discriminatory motive By Maria Greco Danaher Most cases of discrimination fall within the "disparate treatment" theory, where an individual claims that he or she has been treated differently from other similarly situated individuals based upon a protected characteristic like gender, age, or race. Certain cases, however, include a claim of "disparate impact," in which an employee sets out to show that a facially neutral policy had an adverse impact on employees who fell within a protected category because of their gender, age, or other protected characteristic. The 10th U.S. Circuit Court of Appeals recently addressed a case in which a female employee claimed both disparate treatment and disparate impact. The lower court dismissed both claims, finding that because the employee was unable to prove that she had been treated differently on the basis of her gender, she did not have legal standing to bring a disparate impact claim. The Tenth Circuit reversed, holding that the disparate impact claim was improperly dismissed. Santana v. City and County of Denver, No. 05-1111 (10th Circ., May 24, 2007). Kathy Santana was hired as a deputy sheriff for the Denver Sheriff's Department in 1977. She was promoted to the rank of sergeant in 1992. In 2000, Santana applied for a promotion to captain, but was unsuccessful in her attempt when she admittedly became emotional at her interview and did not answer the interviewers' questions completely. Over the following two-year period, and based upon the list of "top" candidates compiled during the selection process, the department promoted a total of 10 sergeants to the rank of captain, including eight men and two women. Santana then alleged that she and other females were not selected for promotion in spite of the fact that they were more qualified and more experienced than the males ultimately chosen. She asserted that the department's reason for not promoting her (poor interview performance) was a pretext for gender discrimination. She further alleged that the promotion process generally was biased against women. The lower court held that while Santana did state a prima facie case of gender discrimination, she could not show that the proffered reason for the decision not to promote her was a pretext for discrimination. Based upon Santana's failure to prove disparate treatment, the lower court determined that Santana did not have standing to support her disparate impact claim. The Tenth Circuit disagreed, finding that Santana's disparate impact claim should go forward. The court specifically held that a claim of disparate impact, unlike a claim of disparate treatment, does not require a specific showing of discriminatory motive or intent, but simply requires proof that a policy adversely affects a protected group unnecessarily. Therefore, for Santana to pursue her disparate impact theory, she did not have to prove that the department failed to promote her because of her gender-she simply had to show that the interview process resulted in a disparate impact on female candidates generally. The Tenth Circuit allowed Santana to continue to pursue that claim. In a disparate impact case, an individual must prove that a challenged practice or policy is discriminatory because it has an adverse impact that is unjustified by the employer's legitimate business needs, even if that result is unintentional. Employment policies that affect the members of a protected group adversely should be reviewed to determine whether the impact of the policy is business-related, and whether the same result could be reached with an alternate policy that has a less negative impact on protected employees. n Copyright (c) Dickie, McCamey & Chilcote, 2007. All rights reserved.