Does discrimination have to be intentional to be unlawful?

Our research found that, in some cases, discrimination does not have to be intentional to be illegal. The most straightforward example of a situation in which unlawful discrimination may be unintentional is disparate impact discrimination, which is when employers post certain requirements that disproportionally disqualify minority groups. Learn more about why discrimination does not have to be intentional to be unlawful in our free legal guide below.

UPDATED: Jul 13, 2023Fact Checked

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 13, 2023

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UPDATED: Jul 13, 2023Fact Checked

Most commonly, when people think of discrimination, they think of intentional discrimination or of purposely treating someone differently on the basis of gender, religion, age, race, disability or other protected statuses. However, in certain instances, it may be possible for even unintentional discrimination to be considered unlawful.

The most straightforward example of a situation in which unlawful discrimination may be unintentional comes in the form of disparate impact discrimination. Disparate impact occurs when a requirement is given that has the effect of disqualifying a larger number of minorities or those in a protected class.

For example, if an employer puts into place a policy requiring that all employees be able to lift 100 pounds, this requirement could potentially have a disparate impact on women who, on the whole, do not tend to be as strong as men.

Likewise, if the business is located in an area where a large number of minorities do not have high school diplomas, instituting a requirement that mandates all employees have a high school diploma could be a form of disparate impact discrimination.

These examples aren’t discriminatory in and of themselves. The employer in such a case will simply have to prove that the requirement has a bona fide occupational basis. For example, if the job required the person to repeatedly and routinely lift 100 pounds, then a test that requires this would be permitted even if it did have a disparate impact on women, since the requirement is one that makes sense in light of the job description.

In addition to disparate impact cases, there may also be other instances when an employer is considered to be engaging in illegal discriminatory behavior or violating an individual’s human rights, even when his behavior is not necessarily intentional. To determine if there are laws or rules in your state that would allow for damages for unintentional discrimination, it is in your best interests to consult with a lawyer.

Case Studies: Insurance and Discrimination

Case Study 1: Health Insurance Coverage Denial

We examine a situation where an individual’s health insurance coverage is denied based on an unintentional discriminatory policy. An insurance company implements a requirement that excludes coverage for a specific medical condition, disproportionately affecting individuals of a certain race or gender.

Although the insurance company may not have intended to discriminate, the policy’s impact on a protected group could be considered unlawful. The affected individual may seek legal recourse to challenge the denial of coverage.

Case Study 2: Auto Insurance Premium Disparity

We explore the issue of unintentional discrimination related to auto insurance premiums. An insurance company uses a rating factor that disproportionately affects a specific demographic group, such as age or location, resulting in significantly higher premiums for individuals in that group.

While the insurance company may not intentionally discriminate, the disparate impact on the affected group raises concerns of unlawful discrimination. Legal action may be pursued to address the unfair disparity in premiums.

Case Study 3: Home Insurance Redlining

This  focuses on unintentional discrimination in the context of home insurance redlining. An insurance company unintentionally sets underwriting guidelines that result in disproportionately denying coverage or charging significantly higher premiums for homeowners in certain neighborhoods or areas with a higher concentration of minority populations.

Although not intentional, this practice could be deemed discriminatory and in violation of fair housing laws. Affected homeowners may seek legal remedies to challenge the discriminatory practices and obtain fair access to home insurance.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

Get Legal Help Today

Find the right lawyer for your legal issue.

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