Disparate Treatment

What is Disparate Treatment?

Disparate treatment is when an employer regards a specific applicant or an employee differently than others, solely because they are a woman, minority, or member of another protected class. Disparate treatment is illegal to ensure employers don’t act with discriminatory intent against an applicant or employee.

Such actions may include:

• Refusal to hire
• Refusal of promotion
• Reason for termination
• Establishment of nonpermissible company policies that are unrelated to Bona Fide Occupational Qualification (BFOQ)
• Other adverse job actions

If an employer acts with disparate treatment, even if discrimination was not the sole motivating factor, they may be held liable in a court of law.

What Is the Difference Between Disparate Impact and Disparate Treatment Discrimination?

The main difference between disparate impact (also called disparate effect) and disparate treatment is:

• Disparate impact = un intentional discrimination
• Disparate treatment = intentional discrimination

If an organization’s policies, practices, or procedures effectively and negatively impact members of a protected class based on race, color, religion, etc., then this is considered disparate impact. However, if the policies, practices, and procedures were set in place to intentionally discriminate against members of a protected group, this is disparate treatment.

Example #1 of disparate impact vs disparate treatment:

• Disparate Impact: Requiring all applicants to take a pre-hire assessment test, but eliminating only women from further consideration based on the results
• Disparate Treatment: Requiring only women to take a pre-hire assessment test

Example #2 of disparate impact vs disparate treatment:

• Disparate Treatment: Running an annual background check only for Mexican-American employees
• Disparate Impact: Running an annual background check, which results in showing that most employees with a new criminal conviction are Mexican-American employees

How Are Disparate Impact and Disparate Treatment Proven?

Note that both disparate impact and disparate treatment are illegal discrimination unless an employer can prove the policies, procedures, and practices are necessary and related directly to the job position.

All applicants and employees have the legal right to claim discrimination against an employer.

To prove disparate impact, the following must apply:

1. A specific employment practice caused an applicant/employee to be treated worse than those outside the protected class.
2. The employer does not have a legitimate business purpose for the specific employment practice.
3. The employer can achieve the same business goal without discriminating against a particular protected class.

To prove disparate treatment, the following must apply:

1. An applicant/employee must be a member of a protected class.
2. At the time of the act, the employer had to know the applicant/employee is a member of the protected class.
3. The employer took negative action against the applicant/employee (unfair performance review, refused a bonus, etc.).
4. Others who were not a member of a protected class were treated more favorably than the applicant/employee.

What Is a Protected Class?

A protected class is a group of individuals who are legally protected by Title VII of the Civil Rights Act of 1964 from employment discrimination based on:

• Race
• Color
• National origin
• Religion
• Sex, gender, or sexual orientation

Other federal laws for protected classes are:

• The Equal Pay Act of 1963 prohibits discrimination in compensation based on sex.
• The Age Discrimination in Employment Act of 1967 prohibits discrimination of applicants/employees who are >40 years old.
• The Uniformed Services Employment and Reemployment Rights Act prohibits the discrimination of past and present applicants/members of the uniformed services.
• The Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA) prohibits discrimination against veterans.
• The Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy or pregnancy-related temporary disability.
• The Americans with Disabilities Act (ADA) prohibits discrimination against individuals who have a physical or mental disability.
• Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits genetic information (i.e., personal or family medical history) from being used to discriminate in employment.

Note, some state and local laws also protect applicants/employees from employment discrimination based on other personal traits.