With President Biden's announcement of his plan to vaccinate all employees of employers with 100 or more employees, the nation is keenly focused on workplace mandatory vaccination policies. This has led some to question whether the President's plan unlawfully discriminates against minority employees.
There is little doubt that vaccination rates among Blacks and Hispanics lags behind that of Whites (which isn't that great to begin with). At the latest count, only 43% of Black Americans and 48% of Hispanic Americans are vaccinated, compared with 52% of White Americans. The reason for this greater vaccine hesitancy within minority communities is understandable and well documented, particularly when the government is promoting or flat-out requiring the vaccine. See the Tuskegee Experiment (one of our nation's greatest embarrassments … and that's saying a lot).
All of this begs the question — is a mandatory vaccination policy discriminatory against Blacks and Hispanics. Or, more technically speaking, does such a policy adversely impact them?"Adverse impact" is a theory of discrimination liability, when a facially neutral policy, practice, or rule disproportionately impacts a protected group. It's different than disparate treatment liability, which presupposes an intent to discriminate. With adverse impact, even though there is no unlawfully discriminatory intent, the policy, practice, or rule is nevertheless unlawful because of its statistically significant effect on a protected group over another.