What is the difference between disparate treatment and disparate impact?

Discriminatory employment practices include disparate treatment and disparate impact. Disparate treatment refers to intentional employment practices that discriminate. Disparate impact refers to unintentional employment practices that discriminate.

By Brad Nakase, Attorney

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Table of Contents

1. What is disparate treatment in employment?

2. What are examples of disparate treatment in the workplace?

3. Disparate treatment in failure to hire

4. Disparate treatment in termination

5. Disparate treatment in terms and conditions of employment?

6. What is disparate impact?

7. How do workers prove a disparate impact claim?

What is disparate treatment in employment?

Disparate treatment in employment refers to a form of discrimination that happens when an employer treats employees or job applicants differently based on their membership in a protected class, such as race, color, religion, sex, national origin, age, or disability. It involves intentional and unequal treatment that adversely affects an individual’s employment opportunities or conditions.

To legally support a disparate treatment claim, several elements usually need to be established:

Membership in a protected class: The individual alleging disparate treatment must be a member of a protected class as defined by relevant anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 or state-specific laws. For example, if the claim involves racial discrimination, the individual must belong to a racial minority.

Employer knowledge of the protected class: It must be demonstrated that the employer had knowledge of the employee’s membership in the protected class. This can often be inferred from the circumstances or through direct evidence, such as discriminatory statements or actions by the employer.

Harmful act or differential treatment: The individual must show that they suffered an adverse employment action or were subjected to different treatment compared to similarly situated individuals outside their protected class. Adverse actions can include refusal to hire, termination, demotion, denial of promotion, unequal pay, or other discriminatory practices.

Others not subjected to the same treatment: Another crucial element is establishing that individuals outside the protected class, who are similarly situated to the claimant in terms of qualifications or circumstances, were not subjected to the same differential treatment. This helps demonstrate that the disparate treatment was based on the individual’s membership in the protected class and not on legitimate factors unrelated to discrimination.

Successfully defending a disparate treatment claim requires gathering evidence, documentation, and potentially witness testimonies to oppose the allegations of intentional discrimination based on protected class membership. Please contact our employment attorneys defending employers from employees lawsuits to protect your company.

What are examples of disparate treatment in the workplace?

Disparate treatment in the workplace can manifest in various forms. The following are some common examples:

Hiring: An employer intentionally rejects job applicants from a particular racial or ethnic group, even though they possess the same qualifications as candidates from other groups.

Promotion: An employer consistently promotes employees of one gender while bypassing equally or more qualified individuals of another gender.

Salary and Benefits: An employer pays employees of a certain age less than their younger counterparts for the same job or denies them benefits available to younger employees.

Discipline and Termination: An employer imposes harsher disciplinary measures or terminates employees based on their religion or disability, while treating others in similar situations more leniently.

Assignments and Opportunities: An employer consistently assigns employees of a particular race or national origin to less desirable tasks or denies them opportunities for advancement or training compared to others.

Harassment: An employer allows persistent and severe harassment of employees based on their sexual orientation or gender identity, creating a hostile work environment.

Accommodations: An employer fails to provide reasonable accommodations to employees with disabilities while providing them to employees without disabilities who are in similar situations.

Customer Preference: An employer bases employment decisions on the presumed preferences or biases of customers, such as refusing to assign certain employees to customer-facing roles due to their race or religious attire.

Pregnancy Discrimination: An employer terminates, demotes, or takes adverse actions against employees because they are pregnant or treats them differently in terms of job assignments or benefits.

Retaliation: An employer takes retaliatory actions against employees who oppose discriminatory practices, such as demotion, negative performance reviews, or unjustified disciplinary actions.

It is important to note that every situation is unique, and the above examples are all-encompassing. If workers believe they have experienced disparate treatment, they may an employment attorney or file a complaint with the relevant authorities, such as the EEOC or state employment agency, for assistance and potential recourse.

Disparate treatment in failure to hire

Disparate treatment in the context of failure to hire occurs when an employer intentionally treats job applicants differently based on their membership in a protected class, resulting in the denial of employment opportunities.

Disparate treatment in failure to hire can involve situations where an employer unjustifiably rejects qualified applicants from a specific protected class while hiring individuals from other groups with similar qualifications. For example, an employer consistently hires male applicants for positions traditionally held by men, despite equally or more qualified female candidates being available.

Employers may employ selection criteria or hiring practices that disproportionately disadvantage applicants from certain protected classes. These criteria may appear neutral on the surface but result in discriminatory outcomes. Examples include requiring qualifications or experience that are unnecessary for the job or imposing subjective standards that allow for bias in decision-making.

Disparate treatment in hiring can stem from stereotypes or biases about certain protected characteristics. Employers may base their decisions on preconceived notions or prejudices, such as assuming older workers are technologically incompetent or that individuals of a certain race are less competent. These biases can lead to discriminatory hiring practices.

Discrimination can also occur during the interview process. For instance, an employer may ask inappropriate or irrelevant questions to applicants from protected classes, such as questions about marital status, pregnancy plans, religious practices, or disabilities. Treating applicants from protected classes differently during interviews can contribute to a pattern of disparate treatment.

Employers may engage in disparate treatment by giving preferential treatment to candidates who have personal connections or relationships with the hiring personnel, regardless of their qualifications. This practice can exclude qualified candidates from protected classes who do not have access to the same networks or relationships.

Disparate treatment in failure to hire can also occur when employers offer lower starting salaries or benefits packages to applicants from protected classes compared to applicants with similar qualifications from other groups. This disparity can perpetuate wage gaps and systemic inequalities.

To establish a claim of disparate treatment in failure to hire, an individual would typically need to demonstrate that they were qualified for the position, that they were a member of a protected class, that the employer had knowledge of their protected class status, and that the employer intentionally treated them less favorably compared to similarly qualified candidates outside their protected class.

Disparate treatment in termination

Disparate treatment in the context of termination occurs when an employer treats employees differently based on their membership in a protected class, leading to discriminatory termination practices.

Disparate treatment in termination involves situations where an employer unjustifiably terminates employees from a specific protected class while retaining similarly situated employees from other groups. This can occur when an employer uses discriminatory criteria or biases in the decision-making process, resulting in the differential treatment of employees.

Employers may have policies or practices in place that disproportionately impact employees from certain protected classes, leading to their termination. These policies or practices may seem neutral on the surface but have a disparate impact on certain groups. It is important to note that disparate impact claims focus on the discriminatory effect of policies or practices, regardless of intent.

Disparate treatment in termination can involve situations where employees from protected classes receive harsher disciplinary actions or penalties compared to similarly situated employees from other groups. This can include instances where employees are subjected to more severe or frequent disciplinary actions, leading to termination, based on their protected characteristics.

Disparate treatment in termination can occur when an employer retaliates against employees who have engaged in protected activities, such as filing complaints of discrimination, participating in investigations, or exercising their rights under anti-discrimination laws. Employers may terminate employees in retaliation for asserting their rights, which is unlawful.

Employers may selectively enforce policies or rules against employees from protected classes, resulting in their termination. For example, an employer might strictly enforce attendance policies for employees of a particular race while being more lenient towards employees of other races who have similar attendance issues.

Disparate treatment in termination can arise when employers apply performance standards or evaluations differently to employees from different protected classes. This can result in employees from certain groups being subjected to stricter evaluations or higher performance standards, leading to their termination.

To establish a claim of disparate treatment in termination, individuals would typically need to demonstrate that they were treated less favorably compared to similarly situated employees outside their protected class, that the employer had knowledge of their protected class status, and that the termination was based on discriminatory motives or factors.

Disparate treatment in terms and conditions of employment?

Disparate treatment in terms and conditions of employment refers to situations where an employer treats employees differently based on their membership in a protected class, resulting in unequal or discriminatory conditions of employment.

Disparate treatment in compensation involves paying employees from a specific protected class less than similarly situated employees from other groups for performing the same or substantially similar work. This can include differences in base salary, bonuses, commissions, or other forms of compensation.

Companies may offer different benefits or perks to employees based on their membership in a protected class. For example, providing certain benefits or opportunities for advancement to employees of one gender but not to employees of another gender with similar qualifications and experience.

Disparate treatment can occur when employers consistently assign employees from certain protected classes to less desirable tasks, deny them opportunities for advancement or professional development, or exclude them from high-profile projects or training programs.

Employers may impose different work schedules or hours on employees based on their membership in a protected class. This can include assigning less favorable shifts or limiting access to flexible work arrangements, such as remote work or part-time options.

Disparate treatment can also arise in promotion and career advancement opportunities. Employers may disproportionately promote employees from one protected class while excluding or limiting the advancement of equally or more qualified individuals from other protected classes.

This differential treatment can involve subjecting employees from certain protected classes to a hostile work environment through harassment or discriminatory behavior. This can include offensive comments, derogatory slurs, or exclusionary practices that create an intimidating, offensive, or hostile work environment.

Companies may also provide different opportunities for training, mentoring, or professional development based on an employee’s membership in a protected class. Unequal access to these opportunities can hinder career growth and perpetuate disparities.

Disparate treatment can also occur when employers assign heavier workloads or less desirable tasks to employees from specific protected classes compared to others. This can contribute to inequitable distribution of responsibilities and opportunities for career advancement.

To establish a claim of disparate treatment in terms and conditions of employment, individuals would typically need to demonstrate that they were treated less favorably compared to similarly situated employees outside their protected class, that the employer had knowledge of their protected class status, and that the differential treatment was based on discriminatory motives or factors.

What is disparate impact?

Disparate impact and disparate treatment are two different forms of discrimination recognized under employment laws.

Disparate treatment refers to intentional and purposeful discrimination where individuals are treated differently based on their membership in a protected class. It involves the unequal treatment of individuals because of their protected characteristics, such as race, color, religion, sex, national origin, age, or disability. Disparate treatment occurs when an employer intentionally treats individuals from a protected class less favorably compared to others in similar circumstances.

For example, if an employer rejects a qualified job applicant solely because of their race or promotes a less qualified employee based on their gender while passing over a more qualified employee of a different gender, it would be considered disparate treatment.

Disparate impact, also known as adverse impact, focuses on discriminatory effects rather than intent. It occurs when a seemingly neutral policy or practice disproportionately and negatively affects individuals from a protected class, even if there is no intention to discriminate. Unlike disparate treatment, disparate impact discrimination can occur unintentionally.

Disparate impact analysis looks at the impact of a particular policy or practice on different groups to determine if there is a significantly adverse effect on a protected class. If the policy or practice has a disproportionately negative impact on a protected class, it may be considered discriminatory, even if the employer did not intend to discriminate.

For example, if an employer puts in place a requirement that all applicants must have a certain level of physical strength for a job, it may disproportionately exclude female candidates because of the physical strength stereotype associated with gender. Even though the employer did not explicitly intend to discriminate, the policy has a disparate impact on female applicants.

The following is a summary of the key differences between disparate treatment and disparate impact:

Intent: Disparate treatment requires intentional discrimination based on protected characteristics, while disparate impact focuses on the discriminatory effects of seemingly neutral policies or practices, regardless of intent.

Treatment vs. Impact: Disparate treatment examines differential treatment of individuals based on protected characteristics, while disparate impact examines the disproportionate adverse impact on a protected class caused by a policy or practice.

Direct vs. Indirect Discrimination: Disparate treatment involves direct and intentional discrimination, while disparate impact involves indirect discrimination resulting from seemingly neutral policies that have discriminatory effects.

Burden of Proof: In a disparate treatment claim, the burden is on the plaintiff to demonstrate intentional discrimination. In a disparate impact claim, the burden initially rests on the plaintiff to show a policy or practice has a disparate impact, and then the burden shifts to the employer to justify the policy as a business necessity or job-related.

Both forms of discrimination, disparate treatment and disparate impact, are prohibited under various anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964. Understanding the distinctions between them helps in recognizing and addressing different types of discriminatory practices and effects.

How do workers prove a disparate impact claim?

To prove a disparate impact claim, certain elements need to be established. These elements typically include:

Disparate Effect on Members of a Protected Class:

The individual bringing the claim must demonstrate that a particular policy or practice employed by the employer has a disproportionate and adverse impact on members of a protected class. This is typically shown through statistical or other evidence indicating a significant disparity in outcomes based on a protected characteristic.

Individual Bringing Claim is a Member of the Affected Protected Class:

The individual bringing the claim must be a member of the protected class that is adversely impacted by the policy or practice. They need to demonstrate that they personally experienced the negative effects of the policy or practice in question.

The Disparate Consequence was a Direct Result of Company Policy or Practice:

The individual must establish a causal link between the challenged policy or practice and the disparate impact on the protected class. This requires demonstrating that the adverse impact is a direct result of the company’s policy, procedure, or practice rather than other factors unrelated to the employer.

Existence of an Alternative Policy or Practice:

The individual must show that there is an alternative policy or practice that would serve the employer’s legitimate business interests without causing the same disparate impact. This demonstrates that the employer has a reasonable non-discriminatory alternative available but chose to adopt a discriminatory policy or practice.

To support a disparate impact claim, various types of evidence can be presented, including statistical data, expert analysis, documentation of policies or practices, company records, employee testimony, and other relevant information that helps establish the elements mentioned above.

When pursuing a disparate impact claim, individuals often file a complaint with the Equal Employment Opportunity Commission (EEOC). The agency investigates the claim and may attempt to facilitate a resolution between the parties. If a resolution cannot be reached, the individual may have the option to pursue a lawsuit in court.

Consulting with an employment lawyer experienced in discrimination law can provide guidance on the specific requirements for proving and defending a disparate impact claim and help navigate the legal process.

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