Heather Bussing is an employment attorney and is the Editorial Advisory Board editor at HR Examiner. Full Bio »

—

My colleague, Jon Hyman at the Ohio Employers Law Blog wrote a post called The Digital Divide and Disparate Impact. Quoting internet use statistics and a great infographic on Mashable, Jon correctly pointed out that if minorities have limited access to the internet, then jobs that require online application could have a disparate impact on those minorities.

Since the Mashable post and infographic only talked about “home internet use by race,” I was curious about what overall internet use (computers, phones, tablets) looked like.

The latest study at Pew Internet was almost 3 years ago in July 2009: Wireless Internet Use by John Horrigan.

As of 2009, 92% of American adults had internet access:

• 92% had internet access
• 85% owned a handheld device (phone) with internet
• 47% owned a laptop
• 64% owned a desktop computer

When you look at the racial breakdown, it turns out that minorities own slightly fewer computers, but they do not have lower internet access or use rates.  For example, 66% of Whites have desktop computers compared to 51% Blacks and 64% Hispanics.

But internet use for adult Americans on computers (laptop and desktop combined) is:

• White 79%
• Black 67%
• Hispanic 84%.

For handheld wireless devices, internet use is:

• White 54%
• Black 60%
• Hispanics 68%.

And the percentage of American adults who are internet or cell phone users is:

• White 91%
• Black 87%
• Hispanic 94%.

In other words, minorities have basically the same internet access as Whites, they just use phones instead of computers.

Disparate Impact Analysis

To prove a disparate impact case, the employee or applicant has to show that an employer’s practice or policy adversely affects some class of protected people. For example, a Hispanic files a lawsuit claiming a company’s online application process precluded Hispanics from applying because fewer Hispanics have computers with internet.

Right now, very few companies are set up for you to apply for jobs through your phone. Expect this to increase though, because many are working on it.

In the meantime, you can get all sorts of information about job openings on your phone, as well as information for how to apply. So the claimant would have to show not only that having an online application process might adversely affect Hispanics, but also that Hispanics were not applying because of it.

Then it gets even tricker. Most jobs that require an online application process require sufficient skills to actually use the process. This often means some college.  A November 2011 survey by Student Monitor (a market research firm that tracks consumer trends for college students) found that 95% of college students have a computer and 100% have access to computers. (BTW: 98% use Facebook and 75% use Twitter.)

The primary legal defense to a disparate impact case is “business necessity” –that the challenged practice is “job-related for the position in question and consistent with business necessity.” (42 U.S.C. section 2000e 2(k)(1)(A)(i).)  So if using a computer and being able to figure out an online application process is a legitimate skill required for the job, then it would be extremely difficult for a claimant to win a disparate impact case simply by showing that Hispanics or Blacks own fewer computers, or have fewer Broadband accounts.

The reality is almost everyone has internet access. But the fact that minorities use mobile more than computers is an interesting business case for developing easy to use mobile job application processes, because it would reduce the chance of disparate impact claims.