Adverse effect refers to the consequence of applying disparate impact. Under the disparate impact, the employer applies a criterion in employment related activities such as selection, elimination, assignment, among others which has the effect of discriminating one or more individuals against the larger segment of employees. In that context, to prove adverse impact the employee has to show that the employer would have applied another option which would achieve the intended employment objective without necessarily discriminating against him. The rule applies against discrimination and the employer put to his defense has to prove to court that no other criteria would have achieved the organizational objectives. In Ricci v Destefano, the employer (the New Haven Civil Service Board was unable to prove that the selection criteria for the selection of firemen and women was justified and non-discriminatory hence the judges’ decision that the criteria was discriminative.
On the other hand, disparate impact refers to the singling out of a one or a group of persons in a protected class and subjecting them to treatment that is unfavorable to them. The list of protected classes is not exhaustive but includes race, color, national origin, sex, pregnancy, age, among others. The applicants (plaintiffs) have to prove that the action by the employer was selective and that it ended up discriminating to the extent that it disadvantaged them as compared to the other employees. In the case the judges reached the decision that the selection criteria subjected to the eighteen applicants was discriminatory and that as blacks they were not in as good a position as was the white firefighters. It is important to note that rights against discrimination are statutorily provided in Title VII.
References
Gutman, A., & Dunleavy, E. (2013, February 12). On the Legal Front: The Supreme Court Ruling in Ricci v. Destefano. Retrieved July 23, 2013, from Society for Industrial and Organizational Psychology: http://www.siop.org/tip/oct09/08gutman.aspx
Miller, R. L., & Jentz, G. A. (2007). Business Law Today: The Essentials: The Essentials. New York: Cengage Learning.
