HR Management & Compliance, Talent

Disparate Treatment Versus Disparate Impact

When trying to be sure the organization does not have any discriminatory policies or actions, HR professionals have a big task.

One area many organizations get tripped up on is unintentional discrimination. At the end of the day, discrimination is still discrimination, even if it’s not intentional—and as such, the Equal Employment Opportunity Commission (EEOC) specifically notes that discrimination that occurs based on having a negative impact on a specific group (even when that was only a by-product of the situation) is still illegal. This is what is known as disparate impact. We’ll take a look at that, and then we’ll compare it to the other related type of discrimination: disparate treatment.

Defining ‘Disparate Impact’

“Disparate impact” is what occurs when an organization’s actions, policies, or some other aspect of their processes inadvertently result in discrimination against people who are in a protected class[i]. This happens when one or more protected groups are negatively impacted more so than other groups, even though the policy, action, or item in question would otherwise appear to be neutral. What matters is the outcome, not the intent. The policy or action could appear to be completely neutral but still have a disparate impact when implemented.

For example, written application questions may appear to be neutral because all applicants must answer them, but if applicants of a protected class are eliminated more frequently as a result of a specific question, it may have a disparate impact and, thus, could be deemed to be discriminatory.

[Note: There are some legitimate business situations in which you can have a requirement that by default eliminates some groups—this will be legal only if the requirement is a true business need and is not inflated in any way to intentionally exclude that group.]

Defining ‘Disparate Treatment’

Disparate treatment has a similar name but differs from disparate impact. While disparate impact may not be intentional, “disparate treatment” is the more obvious version: purposefully treating individuals from one group in a way that results in a negative impact. This occurs, for example, when an organization singles out individuals from a specific group and treats them differently somehow. For example, when interviewing, if only women are intentionally singled out to have to perform a skill test, that would be disparate treatment and would be discriminatory.

Either one—disparate treatment and disparate impact—can occur in hiring, in firing, and in other employment decisions. HR teams and other managers and supervisors all need to understand these terms and how to avoid the appearance of discrimination. It’s critically important to remember that disparate impact can occur even if there is no intent to discriminate. Organizations would be well served to assess their business practices to ensure they’re not inadvertently discriminating—check to be sure that the organization’s actions are not negatively impacting one group more than others.

[i] Title VII of the Civil Rights Act protects from discrimination based on race, color, national origin, sex, or religion.