Disparate Treatment vs Disparate Impact: Difference and Comparison

The practice of discriminating against employees based on their gender, caste, religion, or color is prevailing in the workplace. The civil rights act of 1964 was enforced to protect the interest of people of protected classes.

The two most common practices are disparate treatment and disparate impact. It is important to be aware of these two terms to seek proper defence.

Key Takeaways

1. Disparate treatment occurs when an individual or group is treated differently based on protected characteristics like race or gender.
2. Disparate impact occurs when a policy or practice disproportionately negatively impacts a particular group, even if it is not intended to be discriminatory.
3. Both types of discrimination are prohibited by law and can have serious consequences for individuals and organizations.

Disparate Treatment vs Disparate Impact

Disparate treatment refers to intentional discriminatory practices, such as treating an individual less favourably due to their protected status, like race, sex, or age. Disparate impact refers to practices that appear neutral but have a discriminatory effect on a protected group.

Disparate treatment or adverse treatment refers to the treatment of employees differently or discriminatory based on caste, gender, race, or religion.

It is the claim an employee can make against an employer or the organization if he believes that he has been treated differently.

An employee may move to court against such practices that may lead the organization to bear repercussions or face legal proceedings.

Disparate or adverse impact refers to policies and regulations that are equal for all groups but have a proportionately adverse impact on protected groups.

The affected group may move to court to report such practices, although it is difficult to prove in a court of law. 

Comparison Table

Parameters of comparison	Disparate Treatment	Disparate Impact
Nature	Disparate treatment is done intentionally.	Disparate impact happens unintentionally.
Policies	In this, policies are set differently for protected classes.	In this, similar policies are defined, but they may lead to adverse effects on certain protected classes unintentionally.
Proving	It is easy to prove disparate treatment.	It is difficult to prove.
Cases	Its cases are gradually reducing.	Its cases are rising sharply.
Example	Taking a pre-interview assessment for females and no assessment for males.	Suppose a pre-interview assessment is taken from both groups. But only females have been recruited based on assessment, and all the males have been recruited directly.

What is Disparate Treatment? 

Disparate treatment relates to the discriminative treatment of an employee due to his integration into a protected class. It refers to the claim made by an employee in a court or employment board.

It refers to intentional discrimination. It refers to treating people of one class differently than others. It may be in terms of 

• Termination: Suppose a company decides to fire some of its employees because of a slowdown. If it warns some of its employees and does not warn employees belonging to, say, African-Americans, then it will be considered disparate treatment.
• Enforcing differentiated policies: If the organization decided to enforce a set of regulations in the organization and laid down a different set of regulations for a specific group, say, African-Americans, then it will count to disparate treatment.
• Promotions: If an individual is treated differently in the workplace. Say a male and a female employee are working in an organization. The female employee has better experience and qualifications. But the male employee has been promoted several times as opposed to women. It will be regarded as disparate treatment.

It is easy for the employee to complain about such discriminatory practices. He has to convince the court of such practices.

The defendant( employer) has to provide evidence supporting his plea. Defendant has to defend his actions through proof. 

These adverse treatments can be avoided by encouraging everyone to openly communicate and share their concerns, ensuring a proper channel for reporting complaints, formulation of set policies and regulations for getting a job, promotion, leave, and other practices, and promoting diversity in leadership and management in the company.

What is Disparate Impact?

Disparate impact relates to the discriminative treatment of people belonging to a protected class. It may happen in the workplace, housing, loans, education, and other areas.

It may happen due to some policies laid down by a company that is harming individuals of a protected class. 

Disparate discrimination laws had been established by the supreme court in 1971 when Duke power company opted for an aptitude test to handle any transfer or promotion.

The black employees were not well educated and hence were never able to clear the test. As a result, they were never promoted.

The Supreme Court laid down certain rules to prevent any discrimination, and from that time, the disparate impact came into existence. 

Disparate impact cases are quite difficult to prove. The employee must present evidence before the court to lodge his complaint. Objective or subjective evidence could be presented. It may be through.

• Interview or aptitude test
• Job performance
• Company’s policies

Companies are opting for fair means and a thorough revision of their policies to serve the interest of every group working in the organization.

Main Differences Between Disparate Treatment and Disparate Impact

1. Disparate treatment is intentional discrimination, while disparate impact happens unintentionally.
2. If an employee believes that he had been treated differently, then he must show evidence, failure to which the action will be referred to as a disparate impact.
3. Disparate treatment is prohibited by law. A company following discriminatory places may face lawsuits and legal repercussions. On the other hand, disparate impact is not always wrong. It will depend upon the preferences and policies of the company.
4. Disparate treatment cases are easier to prove, whereas disparate impact cases are harder to prove.
5. Suppose a company is hiring people to carry loads on their backs for several miles. A higher percentage of males test the past as opposed to females. It will come under disparate treatment against females. Though it is not illegal, the company has its procedures and policies justifying the same.

References

1. https://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/howlj41&section=22
2. https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1540-6210.2010.02179.x

Last Updated : 24 July, 2023