What is the difference between disparate impact and disparate treatment?
Title VI of the Civil Rights Act of 1964 prohibits employers from discriminating based on race, color, religion, sex or national origin. This includes disparate treatment and disparate impact.
The difference between disparate impact and disparate treatment is that disparate treatment is intentional discrimination, while disparate impact is unintentional.
If your organization’s policies, practices or procedures are unbiased but end in a disproportionate impact on protected groups – race, color, religion, sex or national origin – this would be disparate impact.
On the other hand, if your organization’s policies, practices or procedures are set up to intentionally eliminate a protected group based on race, color, religion, sex or national origin, this would be disparate treatment. You cannot intentionally single out or treat an individual in a protected group less favorably.
Examples of Disparate Treatment and Disparate Impact
Example 1: Disparate Treatment
- If only African American applicants are required to take a pre-employment assessment test.
- If you test all applicants and only African Americans are eliminated based on the results of the assessment.
Example 2: Disparate Treatment
- During the annual re-screen of all of your employees, you re-screen all of your female employees and only half of your male employees.
- During your annual re-screen, the results from the background check showed only female employees had new criminal record convictions that would affect their current role or position within the organization.
All applicants have the right to claim their employer discriminated against them during the hiring process, but they have to show if the discrimination was intentional.
For an applicant to say they were a victim of intentional discrimination – disparate treatment – he or she has to show they were treated unfairly based on race, color, religion, sex or national origin. If the applicant can’t show there was intent, it would be disparate impact.