Disparate Treatment vs. Disparate Impact

It is imperative that all employers provide a productive work environment that is free from discrimination. Discrimination refers to employment decisions that are motivated by a protected characteristic.  Employment decisions may include, for example:  hiring, firing, transferring, promoting, demoting, benefits, compensation, and other conditions of employment.  

The U.S. Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it unlawful to discriminate against job applicants  and employees because of the individual's race, color, religion, sex, sexual orientation, gender identity, pregnancy status, national origin, age (40 or older), marital status, disability or genetic information, and more. It is similarly unlawful to retaliate against an individual who files a claim of discrimination, or who cooperates with a discrimination investigation or lawsuit. 

Disparate treatment and disparate impact are categories of discriminatory actions. While they differ with regard to intent, both are unlawful. Disparate treatment is the most common form of workplace discrimination and refers to practices and procedures that result in members of a protected class being deliberately or intentionally treated differently in the workplace. Examples of disparate treatment include administering pre-employment skills testing only to applicants over the age of forty but not to younger candidates.  Disparate impact, on the other hand, encompasses actions and policies that appear to be fair and equitable, but have a disproportionately negative impact upon members of a protected class. While the policy may not be intentionally discriminatory, employers are accountable for negative consequences resulting from unintentional discrimination.  For example, if a company administers an English proficiency test, the consequence may be that individuals who speak English as their second language may experience disparate impact.  

It is crucial that employers review their policies and procedures for both disparate treatment and disparate impact to eliminate discriminatory practices and audit those policies to ensure that there is a legitimate business reason that justifies any restrictions.  For more information, please contact us at info@denovohrc.com or call us at 610-340-1170.