In presentations I have made around the country, I have occasionally raised the question of whether the practice of permitting negotiation of starting salaries is susceptible to challenge under a disparate impact theory. This article explores that question further.
Disparate impact occurs when a practice that is fair in form — because it applies equally to all employees or applicants — has a disproportionally negative impact on the terms and conditions of employment of a protected class of applicants or employees. The landmark decision establishing disparate impact as a theory of discrimination was Griggs v. Duke Power, 401 U.S. 424, 431 (1971). In that case, a high school diploma requirement that was applied to all workers in a particular job was found to disproportionately exclude Blacks from the position because statistics showed that Black high school graduat