Anderson v. Yahoo – Disparate Impact in the Form of Gender Discrimination

An interesting case was filed last week against Yahoo by one of its former editors, Greg Anderson.  Mr. Anderson alleged that Yahoo discriminated against males when it implemented a quarterly performance review system and did not give him the required notice when the company decided to lay off over 500 workers.  The Complaint claims that Yahoo’s performance review system was arbitrary and skewed toward retaining female workers (while instituted under its then CEO Marissa Mayer who was vocal proponent for female rights in the workplace).

The law defines “disparate impact” as a method to prove employment discrimination based on the effect of an employment policy or practice rather than the intent behind it.  To prove disparate impact, there must have been an employment practice that wrongfully discriminated against an employee, and the employee must prove the following five elements: First, that the employee was employed by defendant.  Second, the defendant company had an employment practice (such as the skewed quarterly review process in the Yahoo case) that had a disproportionate negative effect on a protected group of people (gender, age over 40, race, nationality, ethnicity, etc.).   The employee must have been a part of the protected group.  The employee was harmed.  Finally, the defendant’s practice was a substantial factor in causing the employee’s harm.

The lawsuit also alleges that higher-level managers were able to adjust the process based on favoritism and bias.  In addition, the lawsuit claims that under the federal  Worker Adjustment and Retraining Notification Act, Yahoo did not give its laid off employees their rightful sixty day notice when there was a layoff of greater than 500 employees at a single site.  In California, there is a similar notice requirement when fifty or more employees are laid off in a thirty day period.  See these other blogs on workplace discrimination.

Disparate impact has been on the news in many different forms.  The most recent type of disparate impact was exemplified by the U.S. Supreme Court when it ruled last year on a housing discrimination case.  In the case, TX Dept. of Housing v. The Inclusive Communities Project, the Court ruled that claims brought under the Fair Housing Act (which prohibits housing discrimination based on race) can be based on the allegation that the practice had a disparate impact (or a discriminatory effect).  This is even though the “effect” was not motivated by an intent to discriminate.  See the following EEOC Final Rule on disparate impact.

If you witnessed any potentially discriminatory activity at your work and/or retaliation (against anyone) for blowing the whistle prompt action is vital.  Contact the experienced employment law attorneys at Stephen Danz & Associates for a free consultation to discuss your circumstances and legal options.