<P> This form of discrimination occurs where an employer does not intend to discriminate; to the contrary, it occurs when identical standards or procedures are applied to everyone, despite the fact that they lead to a substantial difference in employment outcomes for the members of a particular group and they are unrelated to successful job performance . An important thing to note is that disparate impact is not, in and of itself, illegal . This is because disparate impact only becomes illegal if the employer cannot justify the employment practice causing the adverse impact as a "job related for the position in question and consistent with business necessity" (called the "business necessity defense"). </P> <P> For example, a fire department requiring applicants to carry a 100 lb (50 kg) pack up three flights of stairs . The upper - body strength required typically has an adverse impact on women . The fire department would have to show that this requirement is necessary and job - related . This typically requires employers to conduct validation studies that address both the Uniform Guidelines and professional standards . Accordingly, a fire department could be liable for "discriminating" against female job applicants solely because it failed to prove to a court's satisfaction that the 100 - pound requirement was "necessary," even though the department never intended to hinder women's ability to become firefighters . </P> <P> Disparate impact is not the same as disparate treatment . Disparate treatment refers to the "intentional" discrimination of certain people groups during the hiring, promoting or placement process . </P> <P> The disparate impact theory has application also in the housing context under Title VIII of the Civil Rights Act of 1968, also known as The Fair Housing Act, . The ten federal appellate courts that have addressed the issue have all determined that one may establish a Fair Housing Act violation through the disparate impact theory of liability . The U.S. Department of Housing and Urban Development's Office of Fair Housing and Equal Opportunity, the federal government which administers the Fair Housing Act, issued a proposed regulation on November 16, 2011 setting forth how HUD applies disparate impact in Fair Housing Act cases . On February 8, 2013, HUD issued its Final Rule (1). </P>

Intent to discriminate must be proved for a disparate impact case to be successful