Disparate treatment and disparate impact are two distinct forms of employment discrimination. While they sound similar, they differ in their nature.
One of the key features of disparate treatment is that it’s intentional. It occurs when an employer treats an employee (or a group of them) less favorably because of some protected characteristic, such as their race, religion, gender, disability or age. For example, an employer who refuses to promote women to management positions because they believe men make better leaders is engaging in disparate treatment.
Disparate impact, however, can be unintentional. It involves employment practices that, while appearing neutral and – quite often – designed with fairness in mind, disproportionately affect a protected class of employees.
What are some examples of disparate impact?
Any action that significantly disadvantages one group over another and isn’t justified as an operational or business necessity can potentially be discrimination. Examples of disparate impact include:
- A company has a policy that all employees have to pass a physical fitness test with a minimum height requirement – but there’s no reason that someone shorter cannot do the job. That would likely put most women and some minorities at a disadvantage.
- An employer adopts a “last in, first out” policy when there are layoffs to be made, but they only recently made changes to their hiring processes to increase diversity, so the layoffs will end up including 40% people of color even though people of color only make up 12% of the entire staff.
- A company needs to reduce its overhead, so it starts eliminating higher-paid employees. However, almost all of those employees are over the age of 40.
Disparate impact discrimination can sometimes “fly under the radar” when it happens precisely because it’s unintentional and the policy or practice seems fair on the surface. However, you should never assume that a policy is nondiscriminatory just because it’s applied to everybody in the workforce.
It’s discouraging and distressing to find yourself in a situation where you feel unfairly targeted and singled out by an employer – especially if you think that some form of discrimination is in play. Know that you may have legal options and that seeking legal guidance can help you to make informed decisions accordingly.