TECHNICAL GLOSSARY

Disparate Treatment Definition

Discrimination may arise in various forms; disparate treatment is a specific type of illegal discrimination. Disparate treatment occurs when an individual is treated unfairly or poorly compared to others because of specific protected traits. Protected traits can be defined as those covered under Federal & State Employment laws or Civil Rights Laws, such as race, ethnicity, gender, and sexual orientation. The following types of discrimination would qualify the action as disparate treatment and therefore illegal discrimination according to Federal/State Anti-Discrimation Laws: 1. An employer, supervisor, or other entity taking action against an employee based solely upon his/her protected traits (e.g., termination, denial of a promotion) 2. An employer, supervisor, or other entity making decisions based on whether an applicant possesses one or more of these protected traits (e.g., refusal to hire an applicant based upon his/her race).

How Disparate Treatment Is Used in Employment Law

Disparate treatment basically refers to differences in how an employer treats employees based on their actual or perceived status as members of a protected class. The key statutes used to analyze disparate treatment employment discrimination claims include Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act (ADEA); and the Americans with Disabilities Act (ADA).
In cases involving disparate treatment, courts and administrative agencies will look to see if an employer’s decision-making process was based upon a protected characteristic, rather than a legitimate business reason. Evidence of this may include statements, policies, patterns of behavior, or inconsistencies in the way that similarly situated employees were treated.

Disparate Treatment vs. Disparate Impact

Disparate treatment and Disparate impact discuss discrimination but it is important to note that these two terms describe two different type of discrimination.

Disparate Treatment
• Definition-
  Deliberate discrimination that is committed towards an individual or group based on a protected characteristic.
• Focus-
  The intent/motive of the decision maker committing the discriminatory act.
• Example-
  A business does not hire females for a management position simply because they are females.

To prove disparate treatment the victim must establish that the discriminatory action was intentional.

Disparate Impact

• Definition-
  A neutral policy or practice that has an adverse effect on a protected group.
• Focus-
  The outcome or effect of the policy and not the intent of the decision maker.
• Example-
  An applicant must meet certain criteria to apply for a job but, the criteria have no bearing on whether an applicant would be successful in the position.

To prove disparate impact there is no requirement to establish discriminatory intent.

Example of Disparate Treatment

If a company was filling a management position and had two applicants with equal qualifications and experience - a 45-year-old man and a 28-year-old woman - if, during the interview process, the hiring manager indicated the woman would be “too young” to manage a team and needed “more life experience,” and then offered the job to the older man, the decision was based on age-based assumptions rather than job-based qualifications.
The younger applicant was discriminated against on account of a protected characteristic, and this is an obvious example of disparate impact.