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Understanding disparate impact and disparate treatment discrimination

On Behalf of | Jul 28, 2023 | Age Discrimination, Disability Discrimination, Sexual Harassment, Wrongful Termination

Federal law prohibits employment discrimination in the workplace on the basis of a worker’s race, sex, religion, national origin and several other protected factors. California has its own protections on top of these. This has been the case for many years, and yet we still hear stories about unlawful discrimination in many workplaces.

What’s going on? Are workers imagining this discrimination? Are employers ignorant about the law?

To understand the state of discrimination today, it’s helpful to understand two concepts in employment law: disparate treatment and disparate impact.

Disparate treatment

Disparate treatment refers to situations in which an employer treats workers differently because of their protected status. For instance, an employer might hire only white workers and promote only men.

Describing it this way makes it sound like it would be easy to prove that this employer is breaking the law, this type of discrimination isn’t always blatant or obvious. For instance, it’s possible the only qualified applicants for open positions happened to be white, or that the best-qualified applicants for promotion happened to be men.

In these cases, intent is very important. A plaintiff in a discrimination suit may have to prove that the employer intended to discriminate against them because of their protected status. In some cases, the plaintiff may be able to show that the employer used derogatory language against women or nonwhite people, but otherwise, it can be hard to prove what the employer was thinking.

Alternatively, the plaintiff may provide indirect evidence that suggests a discriminatory intent. For instance, they might show that qualified nonwhite workers applied for jobs but were not hired, or that qualified women were passed over for promotions in favor of less-qualified men.

Disparate impact

Disparate impact refers to situations in which an employer’s policy that seems to apply to all workers actually negatively affects one protected group more than others. For instance, an employer might have a height requirement: Only employees who are 5-feet-9-inches tall or taller are eligible for promotion. Because men tend to be taller than women, this ostensibly neutral policy has a disparate impact on women employees.

Importantly, in these cases, the plaintiff doesn’t have to prove that the employer intended to discriminate on the basis of a protected characteristic. They must only show that the policy had a disparate impact on members of the protected class.

Of course, employers have the right to defend themselves in these cases, and they may show that they had a legitimate business reason for the policy. For instance, a fire department might have a legitimate safety reason for requiring certain employees to be 5-feet-9-inches tall or taller.

The unique details of your case

The examples we used above are quite simplified. In real life, proving disparate treatment or disparate impact can be very complicated. Discrimination isn’t always easy to spot, but that doesn’t make it any less wrong when workers are illegally discriminated against.