Disparate Employment Actions: What is the Four Fifths Rule?

Federal agencies that are responsible for enforcing equal employment laws and civil rights have several ways they can evaluate the impacts of adverse job actions and disparate treatment on both individuals and groups. Individual concerns may be easy to evaluate by comparing job actions to peers; when systems are large and complex, however, finding the truth about how employees are being treated is more complex.

An example would be a large corporation with multiple offices in various cities, or a school district with many schools plus administrative offices. If gender, ethnicity, religion, or other federally protected classes of people are having job impacts based on their protected class, the discrimination may be so diffuse and spread out that it is hard to see.

The Four Fifths Rule

One way that large complex systems are evaluated for disparate treatment or job discrimination actions is by using the four fifths rule. When a job action or treatment is spread across a large group, there is some expected variability between how individuals are treated. But if that variability is too large, and always skews toward impacting a protected group, the federal agencies that protect and investigate equal employment opportunities will suspect job discrimination.

Another way to look at impact is by using 80%. If a large group is evaluated for a job action, there should not be more than 20% variability between the job actions of the highest scoring group and the job actions of the impacted group. If looking at promotions and opportunities for advancement, groups are evaluated by the impacted class- for instance, ethnicity or gender. Using gender as an example, if the promotion rate of a group of men at a specific level of seniority is 100%, and the promotion rate for women at the same level of seniority is 70%, this is considered more impact than can be accounted for by individual differences. Any impact that is more than 80% of the highest rated group is considered an impact that is probably based on protected class.

Protected Groups Under Civil Rights Laws

Federally protected groups are protected because of an historical trend toward discrimination. Efforts have to be made in society for people in these classes to get fair treatment in the environment of unconscious bias and other, more overt forms of discrimination. In large systems, even leadership may not be aware of the subtle undercurrents that are impacting individuals without scrupulous monitoring and careful investigation of discrimination claims.

Adverse Impact Analysis

Also called Adverse Impact Analysis, this evaluation of trends across a large group of employees can also be done as part of human resource monitoring of job actions over time. Diversity and inclusion efforts understand that getting people into the door is only one part of the equation; there may be challenges across the job lifespan that need to be addressed through education and other efforts.

The four fifths rule is a rule of thumb. That means that it is an informal measure that has been used enough that it is considered a standard. The standard and this type of analysis or evaluation is common in human resources departments and other types of investigations into job discrimination. While many states also have additional employment discrimination protections, all states are bound to follow the rules under the federal equal employment opportunity laws.

Contact Our Law Office Today

Do you believe that you have been treated differently than others in your workplace, and that treatment is based on unconscious bias or overt discrimination? If those job actions have impacted your ability to work and support yourself or your family, consider consulting with attorneys experienced in employment law. Our federal civil rights and employment laws are in place to allow all Americans access to a level playing field. We can help you ensure that you have the opportunities guaranteed you under the law. Please contact us for an appointment, or for more information.


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