Does discrimination have to be intentional to be unlawful?

Our research found that, in some cases, discrimination does not have to be intentional to be illegal. The most straightforward example of a situation in which unlawful discrimination may be unintentional is disparate impact discrimination, which is when employers post certain requirements that disproportionally disqualify minority groups. Learn more about why discrimination does not have to be intentional to be unlawful in our free legal guide below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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Most commonly, when people think of discrimination, they think of intentional discrimination or of purposely treating someone differently on the basis of gender, religion, age, race, disability or other protected statuses. However, in certain instances, it may be possible for even unintentional discrimination to be considered unlawful.

The most straightforward example of a situation in which unlawful discrimination may be unintentional comes in the form of disparate impact discrimination. Disparate impact occurs when a requirement is given that has the effect of disqualifying a larger number of minorities or those in a protected class.

For example, if an employer puts into place a policy requiring that all employees be able to lift 100 pounds, this requirement could potentially have a disparate impact on women who, on the whole, do not tend to be as strong as men.

Likewise, if the business is located in an area where a large number of minorities do not have high school diplomas, instituting a requirement that mandates all employees have a high school diploma could be a form of disparate impact discrimination.

These examples aren’t discriminatory in and of themselves. The employer in such a case will simply have to prove that the requirement has a bona fide occupational basis. For example, if the job required the person to repeatedly and routinely lift 100 pounds, then a test that requires this would be permitted even if it did have a disparate impact on women, since the requirement is one that makes sense in light of the job description.

In addition to disparate impact cases, there may also be other instances when an employer is considered to be engaging in illegal discriminatory behavior or violating an individual’s human rights, even when his behavior is not necessarily intentional. To determine if there are laws or rules in your state that would allow for damages for unintentional discrimination, it is in your best interests to consult with a lawyer.

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