disparate treatment vs.disparate impact

There are federal protections that protect individuals from discrimination in the workplace.

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against individuals based on race, color, religion, sex, or national origin. Additionally, the Age Discrimination in Employment Act (ADEA) protects employees or potential hires over the age of 40. Both of these federal policies prohibit discrimination in the workplace. They also serve to shield members of a protected class from less favorable treatment. 

There are two forms of discrimination in the workplace: disparate impact and disparate treatment. An experienced employment attorney aids in analyzing evidence and building a case for the discrimination you’ve experienced. As a victim of workplace discrimination, understanding the form of discrimination experienced is a crucial element of your claim. 

Disparate Treatment

Disparate treatment is less favorable treatment of employees in a protected class. A disparate treatment claim argues that the individual suffered less favorable treatment than similarly situated individuals. The basis for the less favorable treatment is due to the individual’s race, religion, sex, color, or national origin. In disparate treatment claims, the employer’s intent is the matter at issue. 

To support a disparate treatment claim, you need to establish four elements: 

  1. The individual is a member of a protected class; 
  2. The employer knows of the individual’s protected class; 
  3. A harmful act occurred; and  
  4. Other similarly situated individuals were treated more favorably or not subjected to the same treatment. 

A similarly situated individual is one whose employment or qualifications are identical to the individual subjected to discrimination. 

Typically, disparate treatment claims concern three types of conduct related to employment and hiring. The three areas commonly associated with disparate treatment claims are failure to hire, termination, and terms and conditions of work. 

Failure to Hire 

Disparate treatment in failure to hire is evident through employer policies and practices. Disparate treatment policies and practices purposely eliminate a protected group of individuals from the hiring process. Requiring all minority applicants to take an employment test while not requiring the same of non-minority applicants is an example of disparate treatment in hiring.

Termination 

Termination cases arguing disparate treatment may be more challenging to prove. Certain elements must exist to establish that an individual’s termination was due to discrimination. First, you must prove you are in a protected class. Second, you must show that you satisfied the expectations of your employer. Third, you must have been replaced by an individual who is not a member of the same protected class. 

Terms and Conditions of Employment

Regarding the terms and conditions of employment, disparate treatment presents in many forms. For example, a company policy may require the re-screening of employees. But if the company uses the policy to re-screen only Latino employees, then the intent of the policy discriminates on the basis of national origins—a protected class. 

Disparate Impact 

By contrast with disparate treatment claims, the employer’s intent is not at issue. Instead, the company’s policies and practices have discriminatory results. 

Disparate impact claims are difficult to substantiate. These policies and practices do not often seem discriminatory against a protected class. 

Disparate impact claims require the presentation of sufficient evidence. From the evidence, a court can infer that discrimination occurred. The following elements are necessary to build a disparate impact claim:

  1. The employment policy or practice has a disparate effect on a certain group of individuals who are part of a protected class;
  2. The individual bringing the claim is a member of the protected class impacted; 
  3. The disparate consequence experienced by the individual directly resulted from the employment policy or practice; and
  4. An alternative effective employment policy or practice exists that would be non-discriminatory.

There is a defense to a disparate impact claim: the employer must prove that a legitimate and non-discriminatory purpose exists for the policy or practice.  

You can substantiate a disparate impact claim by proving that a policy has negative consequences for a particular class. For instance, suppose a company institutes a hiring policy requiring a strength test. A female applicant fails the strength test and is subsequently eliminated from the hiring process. A disparate impact claim would argue that this hiring practice removes a majority of female applicants, who are a protected class.  

Do I Need an Employment Lawyer? 

Analyzing disparate impact vs. disparate treatment claims is complex. To prove a disparate impact or disparate treatment claim, you must secure evidence that strengthens your claim of discrimination.

If you believe you have been discriminated against in the workplace, it’s important to document every event. Contact our experienced team of workplace discrimination lawyers today. We offer free consultations for discrimination claims. 

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