EPL Target: Disparate Impact Claims


Nonprofits are also vulnerable to claims that an employer’s policy negatively affects one protected category.


“Go back to your clients and talk to them about their criminal conviction inquiries because this is really going to be a big area where the EEOC is going to pursue small and bigger employers alike.”


Wendy Mellk, Jackson Lewis


Disparate impact is when an employer’s neutral policy has an adverse effect on a protected category of employees. Policies concerning the use of background checks are of particular concern to the Equal Employment Opportunity Commission. Many nonprofits, especially in the area of health care and child care, are required to conduct criminal background checks. A blanket decision for all people with a conviction in their background, rather than a case-by-case evaluation, could violate the law because of its disparate impact on a certain group of employees or applicants. The Federal Credit Reporting Act is another area of growing litigation. Employers must maintain strict compliance with the law’s disclosure requirements if they take adverse action against an employee or applicant because of information that turns up in a credit check.


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