Under the theory of “disparate impact,” even facially neutral policies can result in claims of discrimination when a “protected group” suffers a statistical disadvantage vis a vis another group (i.e., the rule of thumb is a twenty-percent disadvantage). For example, in Andreana v. Virginia Beach City of Public Schools, the United States District Court of the Eastern District of Virginia denied a motion to dismiss and ruled that Plaintiff could proceed with a claim of age discrimination by alleging that the employer’s hiring process brought down the average age of its Information Technology Specialists by about three years when employees had to reapply for their positions following a restructuring. While enough to get by a motion for dismissal, the worker still must show that he was qualified for the remaining positions and that age motivated the denial of placement.
