By: Amy Epstein Gluck

Back in July, I talked to Washington Post columnist Karla Miller, who writes an excellent Sunday column called @workadvice for WaPo’s weekly Magazine. The subject of our chat: a letter writer (“LW”) inquired about the legality of a company’s implementation of an appraisal system that included ratings for attendance at corporate social events. In other words, LW’s performance appraisals were contingent upon, in part, LW’s participation in such events. LW did not provide any description of the events, classified herself as a team player, and inquired whether such a policy was even legal.

Ms. Miller deftly explained that the employer could be flirting with some legal issues, I agreed with her because of the possibility that a seemingly neutral employment policy could have a disparate impact upon members of a protected class.

I told Ms. Miller that if attendance was essential for workplace benefits such as promotions or other rewards, “this policy could have what employment discrimination law calls a ‘disparate impact’ on those who are unable to attend for reasons based on their inclusion in a Title VII-protected class. Examples could include workers with family care duties that prevent them from attending non-workday events, workers with disabilities or medical treatments that preclude participation, or workers of faith whose sabbath periods fall during the scheduled events.”

I understand that some pundits have blogged that such a scenario is farfetched, i.e., that yes, in some “universe” any policy could disparately impact a minority group and that the naysayers are really just folks who want to go home at night or are introverted and don’t care to socialize outside of work.  I don’t see it that way.  I am an employment lawyer, after all, and advising employers about foreseeable risks is an important part of that job. Ignoring or dismissing such risks…not so much.

So—what are these risks?

As Lawyers, We Counsel Our Clients As To Real-Life Risks

Let’s take one example. According to Pew (here), nearly a quarter of Jews (23%) in this country say that they always or usually light Sabbath candles, with that percentage being higher among Orthodox Jews. One-in-seven Jews say that they avoid handling money on the Sabbath (13%). Moreover, as described in this Atlantic article, from sundown on Friday to sundown on Saturday, Orthodox Jews do not drive, write, or use electronics of any kind, including cell phones and lights, walk wherever they need to go, and do not work. At all. Thus, that Friday happy hour? Not gonna happen. That Saturday picnic or basketball game? Ditto.

This is just one example, and the same is true for other religious groups. For example, EEOC, the federal agency that enforces the anti-discrimination laws, has sued employers quite recently on behalf of Hebrew Pentecostals and Seventh Day Adventists, whose religious beliefs require that they not work on the Sabbath, which you can read about here and here.

Why is this important?

Because Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination against protected groups (such as religion) in compensation, terms, conditions, and privileges of employment. Accordingly, a workplace policy—even if facially neutral—could have a discriminatory impact on certain religious groups and prohibit them from attaining the same privileges of employment as majority groups.

You see where I’m going with this?

The Disparate Impact Theory

But what is this “disparate impact” theory? Doesn’t discrimination have to be intentional?

The U.S. Supreme Court created this doctrine in order to ferret out historically entrenched racial discrimination that was perpetuated by facially neutral policies. See Griggs v. Duke Power Co., 401 U.S. 424 (1971). There, the Supreme Court interpreted Title VII to prohibit employment testing policies with unjustifiable and adverse disparate impacts regardless of an employer’s actual intent. In other words, this ruling presented one way to tear down the ways in which discrimination may be perpetuated so that a historically disadvantaged group, like let’s say the Jewish people, may make out a prima facie case of disparate impact simply by showing that a neutral practice, in an actual, real life setting, has a disproportionate and discriminatory effect on a protected class.

No need to show intent. Rather, it is the impact or effect that is critical.

Griggs paved the way to challenges against employment practices that shut out marginalized groups.  In the case of LW, it isn’t just introverts (not a protected class) that may be impacted, as we have just seen. It boils down to whether the employer can show that the policy is justified by “business necessity,” which I frankly didn’t see in LW’s case. Indeed, Title VII and the Americans with Disabilities Act (“ADA”) prohibit discrimination based on a disparate impact where, upon scrutiny, facially neutral policies create a disparate impact upon a protected class.

Working parents are another prime example. For instance, say a 25-person company employs ten women, and each of these women has primary childcare responsibilities after work. A policy requiring after-work attendance at social events may result in few of these women being able to attend and one may, therefore, envision a pattern of women with children not attaining the promotions or monetary awards that the policy allows men to obtain (or women without children, of course, but then there would not be a disparate impact on women). Likewise, and as I discussed here and my partner Rich Cohen discussed here in the ADA context, multiple federal laws prevent discrimination on the basis of any sex stereotype, men or women.

Employer Takeaway

There are a whole host of statutes that could be implicated here, which may be the subject for another few posts, and I could continue on, but you get the gist.

When an employer’s policy has a disparate impact on a member of a protected class, the policy runs the risk of violating federal and state statutes. I think it is naive, at best, and an unnecessary risk to counsel an employer that such risks are not that big of a deal or unlikely.

Sure, yes, an employer with such a policy could avoid any “discrimination” issue by making exceptions for employees with legally protected reasons for not attending, but then those exempted employees may be excluded from the benefits to be gained from any type of attendance, such as the clear benefit of after-work networking with decision makers. As lawyers, we are tasked with advising our clients about those risks and then allowing them to make a reasoned business decision considering all of the facts and potential pitfalls.