Adverse
impact (disparate impact) refers to an employment practice that appears to be
neutral but has a discriminatory effect on a protected class.  This may occur in any type of employment
situation including hiring, promotion and transfer process.  Adverse impact claims do not need proof of
discriminatory intent, instead the plaintiff only needs to show that the
employment practice causes significant disparity between the protected class in
the available labor pool and the proportion of hires.  There are five methods that the employee can
use to show that the procedure had an adverse impact.

1.      
Disparate
Rejection Rates – Comparison of rejection rates for a minority group and
usually the remaining nonminority group. 
The 4/5ths rule is commonly used which occurs when the selection rate
for a protected class is less than 80% of the rate for the class with the
highest selection rate.   

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2.      
Standard
Deviation Rule – A statistical measure of the distribution of a set of data
from its mean.

3.      
Restricted
Policy – Demonstrating that the policy intentionally or unintentionally
excluded members of the protected group.

4.      
Population
Comparisons – Comparison of the percentage of protected group and white
workers in the organization with the percentage of the corresponding group in
the labor market.

5.      
McDonnel-Douglas
Test – A test that is used to show
intentional instead of disparate treatment. 
Four rules are used to applying the test; (1) person belongs to a
protected group, (2) applied and was qualified for the open position, (3) was
not selected for the open position and (4) after the rejection the position
remained open and the employer continues to seek applicants.

Once the
plaintiff has established a prima facie case, the burden of proof then is
placed on the employer.  The employer
must then show that the task was a valid predictor of performance on the
job.   

 

With the use
of social media this allows the employer to quickly post information and also
to gather large amounts of data, both of which bring risk to the employer.  Employers also run the risk of inadvertently
skewing the demographics of the recipients of their content and could lead to
potential selection issues.  There needs
to be a balance when posting information online.  Not every applicant uses social media and
those who may have some economic challenges, which may correlate with certain
racial or ethnic groups, could cause an adverse impact.  With the use of social media, accessing
information can cause several issues including types of bias or information
that applicants did not want the employer to see. 

 

Given the
complexity and changing social media outlook, HR needs to develop practices to
utilize social media without adverse impact. 
Some ways to reduce the risk of adverse impact when posting information would
be to limit the individuals that have access to the sites and train on
appropriate content.  Also, the use of
integrated platforms designed to use one posting to broadly post to various
sites would allow for tracking of approved information.  Use various sources to post information and
not just social media. Review demographics on race, gender and sources after
hire, to ensure applicant pool is diversified. 
Train any employee who is involved in the hiring process about the risk
of accessing social media for information and create a policy against using
information to make any kind of employment decision.  Social media is constantly changing and the
amount of information HR professionals have access to need to be monitored to
ensure it is being used appropriately.    

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