Which of the following describes the difference between disparate treatment and disparate impact?

When trying to be sure the organization does not have any discriminatory policies or actions, HR professionals have a big task.

Defining ‘Disparate Impact’

“Disparate impact” is what occurs when an organization’s actions, policies, or some other aspect of their processes inadvertently result in discrimination against people who are in a protected class[i]. This happens when one or more protected groups are negatively impacted more so than other groups, even though the policy, action, or item in question would otherwise appear to be neutral. What matters is the outcome, not the intent. The policy or action could appear to be completely neutral but still have a disparate impact when implemented.

For example, written application questions may appear to be neutral because all applicants must answer them, but if applicants of a protected class are eliminated more frequently as a result of a specific question, it may have a disparate impact and, thus, could be deemed to be discriminatory.

[Note: There are some legitimate business situations in which you can have a requirement that by default eliminates some groups—this will be legal only if the requirement is a true business need and is not inflated in any way to intentionally exclude that group.]

Defining ‘Disparate Treatment’

Disparate treatment has a similar name but differs from disparate impact. While disparate impact may not be intentional, “disparate treatment” is the more obvious version: purposefully treating individuals from one group in a way that results in a negative impact. This occurs, for example, when an organization singles out individuals from a specific group and treats them differently somehow. For example, when interviewing, if only women are intentionally singled out to have to perform a skill test, that would be disparate treatment and would be discriminatory.

Either one—disparate treatment and disparate impact—can occur in hiring, in firing, and in other employment decisions. HR teams and other managers and supervisors all need to understand these terms and how to avoid the appearance of discrimination. It’s critically important to remember that disparate impact can occur even if there is no intent to discriminate. Organizations would be well served to assess their business practices to ensure they’re not inadvertently discriminating—check to be sure that the organization’s actions are not negatively impacting one group more than others.

[i] Title VII of the Civil Rights Act protects from discrimination based on race, color, national origin, sex, or religion.

Discrimination in the context of employment will show itself in one of two forms: disparate impact or disparate treatment. These two legal terms of art not only describe the form of employment discrimination, but also signal the type of analysis to be used and the respective burdens of proof that each party will have. They are very distinct legal concepts. Understanding the difference will help you, as an employee, understand the type of proof that will be required to establish your case.

Defining "Disparate Treatment"

In a U.S. Supreme Court decision, the term "disparate treatment" was first defined as discrimination in which an employer treats some employees less favorably than others because of their race, sex, religion, color or national origin. The employer can be found liable depending on whether or not that particular trait was the actual motivation for the decision in question. In other words, the employer's intent to discriminate is at issue.

Defining "Disparate Impact"

On the other hand, the term "disparate impact" focuses on the discriminatory consequences of an employer's actions. Unlike discriminatory intent, the analysis involves employment practices that are facially neutral in their effect on employees with different traits, but actually have a more adverse effect or impact on a particular group of employees. If the employer can show that the challenged actions are justified because of a business necessity, they may be able to escape liability.

Basic Types of Disparate Treatment Claims

There are basically three categories of disparate treatment claims: failure to hire, termination, and terms and conditions of employment. In a failure to hire case, you must prove the following: you are member of a protected class (i.e., an African American); you applied a job for which you were qualified and for which the employer was soliciting applicants; you were not hired, in spite of your qualifications; and, after you were rejected, the company continued to seek applicants with the same qualifications.

In a termination case, you must prove that you are a member of a protected class; you were terminated from your job; at the time of your termination, your job performance met your employer's legitimate expectations; and you were replaced by a similarly qualified individual who is not in your protected class. In a similar way, Terms and Conditions cases require that you show you are a member of a protected class; you were subjected to an adverse job action; your employer acted more favorably toward other employees who were in a similar situation but outside of your class; and you were qualified to do your job.

The Elements of a Prima Facie Disparate Impact Case

The elements of a disparate impact claim focus primarily on the disparity that is being challenged. For instance, a female employee could challenge a strength test as a requirement for a particular position, because it tends to screen out the majority of female applicants. The evidence required in such cases include: proof that a disparity exists; that the disparity was the direct result of a specific employment device, policy, or practice; that the policy in question was not necessary; and that the employer could have chosen other methods that were less discriminatory but just as effective in meeting their needs.

To learn how you can challenge discriminatory activity in the workplace, call a Birmingham employment attorney from Michel | King Michel & Kingtoday!