A lot of attention is given to intentional discrimination in the workplace, but a lesser-known cause of contention—and liability—is something known as “disparate impact discrimination,” according to Richard Cohen of Fox Rothschild. He says a recent federal lawsuit filed in Pennsylvania is bringing the concept to the forefront.

Disparate impact discrimination cases stem from standardized testing. Cohen explains that, “while courts have often held that although a standardized test may be neutral and nondiscriminatory on its face … the impact of such a test may disproportionately fall upon members of a protected class.” So although the discrimination wouldn’t be explicit, the impact can be found to be discriminatory.

In the Pennsylvania case, the U.S. Department of Justice is suing the state police over physical fitness tests, explains Cohen. It alleges the tests discriminate against women as entry-level candidates for state trooper jobs. Between 2003 and 2008, 94 percent of male candidates passed the physical fitness test, whereas only 71 percent of female candidates passed.

“This difference between the pass rates of female and male applicants, it is alleged, is statistically significant,” says Cohen. In 2009, the test was changed again, but to similar results, and the Justice Department says it resulted in a “disparate impact among female applicants.”