631 General considerations

The Complainant’s disparate impact claim fails where she did not identify any employment practice or selection device utilized by the Respondent that is claimed to have a disparate impact on females or individuals in the protected age group, and where she also failed to present any competent statistical analysis showing a disproportionality of a distribution of a group of employees or any reason to believe that such disproportionality, if it existed, would be the result of a neutral selection device or procedure. Kelly v. Couleecap, Inc. (LIRC, 01/15/14).

A single employment decision, involving only one employee, does not constitute the type of facially neutral policy or practice that can be the subject of disparate impact analysis. Rather, for the purposes of disparate impact analysis, an employment practice consists of something in which an employer regularly or repeatedly engages. The employment practice challenged must also be something specific enough to allow the kind of statistical evaluation of effect that is necessary in a disparate impact case. Bartel v. Greater Madison Convention & Visitors Bureau (LIRC, 12/19/13).

A single employment decision, involving only one employee, does not constitute the type of facially-neutral policy or practice that can be the subject of disparate impact analysis. There is no such thing as an individual disparate impact case. Rather, for the purposes of disparate impact analysis, an employment practice consists of something in which an employer regularly or repeatedly engages. Thoma v. LJ’s Bad Penny Bar & Café (LIRC, 08/27/09).

Disparate impact must be proved by statistical evidence, significant (in the statistical sense) to the confidence level required by law, comparing the effect of an employer’s selection device or standard on employees in the different groups being compared. The Complainant’s assertion that a female had never been appointed to the position for which she applied, and that males outnumber females in professional positions in the city government were not supported by necessary statistical evidence to establish a disparate impact. Kaczmarek v. City of Stevens Point (LIRC, 08/12/03).

Hiring statistics without corresponding information about the applicant pool are insufficient to establish a disparate impact. Workforce composition statistics without information regarding selection rates are insufficient to establish a disparate impact. Balele v. DOR (Wis. Pers. Comm’n, 01/25/02).

Statistical disparities must be sufficiently substantial and not of limited magnitude to give rise to a claim of disparate impact. The surrounding facts and circumstances are considered along with the statistics. Balele v. DOR (Wis. Pers. Comm’n, 01/25/02).

A disparate impact claim cannot be established without statistical proof. It is not enough to show that the Complainant was the sole adversely-affected individual. Balele v. DOC (Wis. Pers. Comm’n, 06/13/01).

There is no such thing as an individual disparate impact case. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff’d (Winnebago Co. Cir. Ct., 10/27/93).

Where an employer’s use of a non-discriminatory, neutral factor has a statistically significant disparate impact on members of a protected group, the employer must prove a business necessity for its practice. A complainant cannot prove disparate impact by anecdotal evidence or by supposition based on expert testimony about the behavioral characteristics of members of a certain group. Disparate impact must be proved by statistical evidence which is significant “in the statistical sense” to the confidence level required by law, comparing the effect of an employer’s selection device or standard on employees in the different groups being compared. Abaunza v. Neenah Foundry (LIRC, 03/30/93), aff’d (Winnebago Co. Cir. Ct., 10/27/93).

The disparate impact theory of discrimination set forth by the U.S. Supreme Court in Griggs v. Duke Power is applicable to the Wisconsin Fair Employment Act. Under the disparate impact theory, an employment practice which is neutral on its face can be found to be discriminatory if in practice it has an adverse impact on a protected group which is disproportionate to that group's level of involvement in the practice. Moncrief v. Gardner Baking (LIRC, 07/01/92).

The disparate impact theory is invoked to attack facially neutral policies which, although applied evenly, impact more heavily on a protected group. Under the disparate impact theory, a Complainant need not offer proof of discriminatory intent. Racine Unified Sch. Dist. v. LIRC, 164 Wis. 2d 567, 476 N.W.2d 707 (Ct. App. 1991).

Consideration of an applicant’s recent gaps in teaching experience is not evidence of age or sex discrimination, unless it is shown that such a consideration actually has a disparate impact on women or people over the age of 40. Chandler v. UW-La Crosse (Wis. Pers. Comm’n, 08/24/89).

The disparate impact theory of discrimination is used to attack employment practices which are neutral on their face but which fall harshly on a protected class of employees. To establish such a claim, it must be shown that a facially neutral employment practice has had a significant discriminatory impact on a protected class. If this is demonstrated, the employer is given an opportunity to defend the practice by showing that it is “job related” or is justified by “business necessity,” and if the employer fails in that burden the practice is illegal. Turman v. W.H. Brady Co. (LIRC, 10/17/85).

An isolated decision not reflective of a regular employment practice or policy is not appropriately challenged under the disparate impact theory. Turman v. W.H. Brady Co. (LIRC, 10/17/85).