Your employer's attendance policy doesn't mention disability. The physical fitness test applies to everyone. The typing speed requirement is posted in the job description. On paper, these policies look neutral. But if they screen out workers with disabilities at higher rates than workers without disabilities, they may violate the Americans with Disabilities Act, even if your employer never intended to discriminate.

This is disparate impact discrimination. It's harder to spot than overt bias, and it's harder to prove. But it's unlawful under the ADA, and understanding how it works can help you recognize when a neutral policy is blocking your access to employment.

What Disparate Impact Means Under the ADA

Disparate impact happens when a workplace policy that applies equally to everyone has a disproportionate negative effect on people with disabilities. The policy doesn't single out disabled workers. It doesn't mention disability at all. But in practice, it excludes or disadvantages disabled employees far more often than non-disabled employees.

The legal test comes from a Supreme Court case called Griggs v. Duke Power Co., originally applied to Title VII race discrimination claims. Courts have extended the framework to ADA cases. To establish disparate impact, you need to show three things:

1. A specific employment practice or policy
2. Statistical evidence that the policy disproportionately excludes or harms people with disabilities
3. The policy isn't job-related and consistent with business necessity

If you can show all three, the burden shifts to the employer. They have to prove the policy is essential to the job and there's no less discriminatory alternative that would accomplish the same goal.

You don't need to prove your employer intended to discriminate. Intent doesn't matter in disparate impact cases. What matters is the effect.

Examples of Neutral Policies with Discriminatory Effects

Attendance Policies

A strict no-fault attendance policy penalizes any absence equally, regardless of reason. Miss five shifts and you're terminated. On its face, that's neutral. But employees with chronic conditions, episodic disabilities, or medical appointments miss work at higher rates than employees without disabilities. The policy screens them out.

The EEOC has issued guidance stating that inflexible attendance policies can violate the ADA when they don't account for disability-related absences that could be accommodated. If the employer can't show that perfect attendance is essential to the job, the policy may fail the business necessity test.

Physical Requirements and Testing

A warehouse requires all workers to lift 50 pounds repeatedly throughout the shift. A police department requires all applicants to pass a timed obstacle course. These look like legitimate job requirements. But if the physical standard excludes people with certain disabilities at disproportionate rates, and the employer can't prove the standard directly relates to core job functions, it may be discriminatory.

The ADA allows physical requirements that are job-related and consistent with business necessity. But "we've always done it this way" or "it's easier to have one standard" isn't business necessity. The employer has to show the requirement is essential, not just convenient.

Standardized Testing and Cognitive Requirements

Timed tests, typing speed benchmarks, and standardized assessments can screen out workers with learning disabilities, ADHD, or processing disorders. If the test measures skills that aren't central to the job, or if reasonable accommodations (extra time, assistive technology, alternative formats) would allow disabled workers to perform the job successfully, the testing requirement may be unlawful.

Courts look at whether the test measures actual job performance or whether it's a proxy that happens to correlate with disability.

What You Can Do When You Believe a Policy Is Discriminatory

Disparate impact cases are harder to prove than direct discrimination cases. You need statistical evidence showing the policy affects disabled workers disproportionately. That data often comes from the employer's own records: hiring rates, termination rates, promotion rates broken down by disability status. Most workers don't have access to that information until discovery in a lawsuit or an EEOC investigation.

But you don't need the full dataset to file a charge. Here's what you can do:

Request a Reasonable Accommodation First

Before filing a discrimination charge, request an accommodation that would allow you to meet the policy's requirements or perform the job without the policy applying. Document the request in writing. If the employer denies it, ask for the denial in writing with an explanation of why the accommodation would impose undue hardship.

A denial of reasonable accommodation can itself be evidence of discrimination. It also creates a record showing you tried to resolve the issue before escalating.

File an EEOC Charge

You have 180 days from the discriminatory action to file a charge with the Equal Employment Opportunity Commission (300 days in states with their own fair employment agencies). You don't need a lawyer to file. The EEOC investigates, requests data from the employer, and may find reasonable cause that discrimination occurred.

In your charge, describe the specific policy, explain how it affects you as a person with a disability, and state that you believe it has a disparate impact on workers with disabilities. If you know of other disabled employees affected by the same policy, mention them. The EEOC may investigate the policy's broader impact.

Gather Your Own Evidence

If you have access to information about how the policy affects other employees, document it. Termination notices, disciplinary records, or knowledge of coworkers who lost their jobs or were passed over due to the same policy can support a disparate impact claim. You won't have the employer's full records, but patterns you've observed strengthen your case.

Consider Whether the Employer Offered Alternatives

If the employer refused to modify the policy or offer an alternative that would have accommodated your disability, that refusal is relevant. Disparate impact claims often turn on whether less discriminatory alternatives exist. If you proposed one and the employer rejected it without explanation, document that.

The Burden of Proof Shifts

Once you present evidence of disparate impact, the employer has to prove the policy is job-related and consistent with business necessity. This is a high bar. "We treat everyone the same" isn't a defense. "This makes scheduling easier" isn't business necessity. The employer has to show the policy is essential to safe and efficient job performance.

If the employer meets that burden, you can still win by showing there's a less discriminatory alternative that would accomplish the same goal. For example, if the employer says perfect attendance is necessary for team coordination, you could show that advance notice of absences or shift-swapping achieves the same result without penalizing disability-related absences.

When Disparate Impact Claims Fail

Not every neutral policy that affects disabled workers is unlawful. Courts have upheld policies when the employer proves business necessity and shows no reasonable alternative exists. For example:

• A firefighter physical fitness test that directly measures the ability to carry equipment and rescue people in emergency conditions
• A commercial driver's license requirement that federal law mandates
• A no-weapons policy that applies equally to service dog handlers and other employees, where allowing the dog on-site resolves the conflict

The key is whether the policy measures something genuinely essential to the job, not whether it's traditional or convenient.

Disparate Impact vs. Failure to Accommodate

Disparate impact and failure to accommodate are related but distinct claims. Failure to accommodate requires you to show you requested an accommodation and the employer denied it without justification. Disparate impact doesn't require a request. It challenges the policy itself as discriminatory in effect.

You can bring both claims in the same EEOC charge. Often they overlap. A strict attendance policy may create disparate impact, and the employer's refusal to excuse disability-related absences may constitute failure to accommodate.

Why Disparate Impact Matters

Direct discrimination is easier to prove when it exists. If your supervisor says "we don't hire people with your condition," you have a case. But most discrimination today doesn't look like that. It looks like policies that seem fair until you realize they systematically exclude people who need flexibility, accommodations, or alternatives to succeed.

Disparate impact law recognizes that discrimination isn't always about intent. It's about effect. A policy can be discriminatory even if no one meant it to be. The legal framework acknowledges that barriers to employment come in many forms, and neutral-sounding rules can be just as exclusionary as overt bias.

If you're facing a workplace policy that you believe screens out workers with disabilities unfairly, you have legal options. You don't need proof of intent. You need evidence of effect, and the knowledge that the law holds employers accountable for policies that create barriers, whether they intended to or not.