Disparate Treatment v. Disparate Impact
The terms “disparate treatment” and “disparate impact” are often overheard when speaking about an adverse action occurring against an employee. However, it is important that you are aware of what these terms mean, so you can better understand if you have been the victim of wrongdoing.
Disparate Treatment
Generally, disparate treatment is easier to see and, ultimately, prove. Disparate treatment is directly targeted conduct towards an employee. This targeted conduct is based on the employee belonging to one of the federally protected classes. The classes which are protected under the Civil Rights Act of 1964 include: race, sex, color, national origin, religion, age, or disability.
Put simply, disparate treatment is intentional discrimination or harassment because an employee is part of a protected class. Let’s look at the following example to understand what this looks like in an employment context. If out of all of a company’s employees, only African Americans are required to take a competency test to be considered for a promotion, then those African American employees are being intentionally discriminated against based on their race. A scenario like this would be considered disparate treatment for purposes of proving the case.
Disparate Impact
Disparate impact, unlike disparate treatment, is when a policy by an employer, that seems to be neutral towards the protected classes, ultimately favors one or more classes over another. For instance, if a police department required a height of at least 5’11 and weight of at least 165 pounds, this would likely result in more women being turned away than men. This is because statistically speaking, men are typically taller and heavier than women. Therefore, although the policy is facially neutral, it discriminates against women when implemented because women are often of a smaller build than men.
Why does this matter?
It is important to differentiate between disparate treatment versus disparate impact because each claim requires different proof to establish the employer’s liability. For disparate treatment claims, the proof lies in the adverse employment action. Therefore, the wronged employee would point to specific conduct or comments of the employer to establish that they were discriminating based on the employee’s protected class.
On the other hand, disparate impact often uses statistics to show that a protected class has been discriminated against. For disparate impact claims, the EEOC has created a rule of thumb known as the four-fifth’s rule. Based on this rule, if a protected class makes up less than four-fifths of the rate of the group with the highest rate, than the EEOC will view this as adverse impact. For those visual learns, the EEOC has provided the below chart to help make sense of this rule of thumb:
Conclusion
Discrimination cases are often not so cut and dry. Discrimination occurs in a number of different forms. Intentional discrimination falls under disparate treatment, where the proof lies in the specific conduct undertaken by the employer. Unintentional discrimination falls under disparate impact, where an employer’s policy may be neutral on its face but when implemented, it tends to disfavor a certain protected class. In either case, whether disparate treatment or disparate impact, if there is unlawful discrimination occurring, you may have a claim against your employer for the harm you have suffered.