Bill SF3662, Disparate Impact Claims, and You.
A bill currently before the Minnesota Legislature could significantly change discrimination claims not just in employment, but in other areas as well. The bill, SF3662, seeks to amend the provision of the Minnesota Human Rights Act dealing with “disparate impact” claims and make it more difficult for employers to defeat such claims.
WHAT IS IT?
A disparate impact claim is a lawsuit alleging that an employer is discriminating against a protected class even if their policies look neutral on the surface. A plaintiff seeks to prove that a seemingly harmless policy has the effect of discriminating based on race, gender, or other factors. One example might be a requirement that a job candidate be able to lift a certain weight.
If a plaintiff can show that an employer’s practice or policy has a disparate impact, the employer can justify the practice by showing that that the practice is “manifestly related to the job or significantly furthers an important business purpose”. The burden then switches to the plaintiff to demonstrate that the same need could be met with another practice that has a “significantly lesser adverse impact on the identified protected class”.
WHAT CHANGES?
SF3662 would change the law in three ways.
- First, it would expand its scope beyond employment and into any practice with a discriminatory effect.
- Second, it specifies that a plaintiff does not have to identify a specific practice, as they do now, but only must show that a disparate impact has occurred.
- Third, the employer would now have the burden of showing that there is no “feasible alternative practice that would equally or better accomplish the identified purpose with a less discriminatory effect”.
In addition, SF3662 seeks to add a provision specifying that the use of artificial intelligence “has a discriminatory effect when the practice actually or predictably results in a disparate impact” on a protected class.
All bills currently before the Minnesota Legislature face significant political headwinds in an election year, but SF3662 could have a significant effect on Minnesota employers. SJJ Law will continue to monitor the bill’s progress.
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