Disparate Treatment and Disparate Impact are tests for Discrimination but Employers get Points for being Intentional

Disparate treatment and disparate impact are two very different types of employment discrimination that use two very different tests to determine if illegal discrimination has occurred and if an employer may be liable for such discriminatory conduct. Having a better understanding of these terms and the potential liability they may impose on a business can help HR professionals and CEOs prevent expensive litigation.

Anti-Discrimination Laws

Federal law prohibits employment discrimination on the basis of race, color, national origin, religion, sex, disability, sexual orientation, genetic information, or age if age 40 or older. 

Disparate Treatment

Disparate treatment is often referred to as intentional employment discrimination. It occurs when a legally-protected class of people are singled out due to such illegal reasons as their race, sexual orientation, ethnicity, age if over 40, disability, or sex. The employer may favor some employees or disfavor other employees due to such characteristics. This type of discrimination often occurs because of written or informal policies, such as requiring only people of a certain race to take a competency test but not require others to take the same test.

Legal Test for Disparate Treatment

The legal test that courts must use to determine whether disparate treatment occurs is whether the protected characteristic actually motivated the decision of the employer. To prove a claim of this nature, the employee who alleges discrimination must show the following:

  • He or she is a member of a protected class
  • He or she was qualified for the position
  • He or she was terminated from the position, denied the position or otherwise suffered negative terms or conditions of employment
  • Other employees or applicants not part of the protected class were treated better than members of the protected class

A finding of employment discrimination can arise even if the employer was unbiased but his or her decision was influenced by someone who was biased. Additionally, it is not necessary for the employee to show that the employer's decision was only due to the discriminatory reason. So long as a discriminatory intent was a motivating factor, the employer can be held liable for discrimination under the disparate treatment theory.

Disparate Impact

Disparate impact is typically unintentional employment discrimination. This type of employment discrimination can occur when a written policy, employment practice or rule causes a disproportionately negative impact on people of a protected class. No ill will or viscous intent is necessary for an employer to still face liability for employment discrimination if the employer is found to have implemented a policy that resulted in a disparate impact on a protected class. An employment practice to use test results as a basis for employment or promotion may have a disparate impact on certain minority groups. Likewise, prohibiting employment of anyone with a criminal record can have a disparate impact on applicants of certain minority groups.

Legal Test for Disparate Impact

Disparate impact cases work similarly to a seesaw in which one side has the burden to prove something and then this burden shifts to the other side. The plaintiff may make a prima facie case by showing his or her version of the story that, if correct, would require the fact finder to rule in the employee's favor. The employee shows that the employment policy has an adverse impact on him or her that is due to being part of a protected class. The employer then shows that there is a business necessity for the employment practice to be in place. The policy must have a direct link to the needs of the business. The employee can respond to this allegation by stating that there were alternatives available to the employer that would have had a lesser impact than the employment practice used. Such alternatives must have been able to meet the needs of the business to an equal degree.

Workplace discrimination has been outlawed on the federal level for more than 50 years. As such, the case law has paved the way for claimants to successfully establish their case if they have been discriminated against intentionally or unintentionally. Careful attention to employment policies and practices can avoid unnecessary and expensive litigation.

1 and 2: Raytheon Co. v. Hernandez, 540 U.S. 44, 52, 13 AD 1825 (2003)(quoting Hazan Paper Co. v. Biggens, 507 U.S. 604, 610 (1993)).


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