Disparate Treatment vs. Disparate Impact: HR Strategies for Inclusivity

Imagine this: Alex, a seasoned employee with years of experience, applies for a promotion within the communications department that will give them the opportunity to lead the company’s social media strategy. However, despite their qualifications and positive performance reviews, the promotion is given to a newer, less experienced colleague. 

Alex’s manager tells them that they chose the other colleague because they feel they have a better grasp of the latest social media trends because they’re younger.

Can you tell if this is an example of disparate impact or disparate treatment?

It’s an important question, and one you’ll be able to answer by the end of this article.  Understanding the nuances between disparate impact and disparate treatment is crucial for HR leaders aiming to foster a fair and inclusive workplace.

Disparate Treatment vs. Disparate Impact

Workplace discrimination manifests in two primary legal categories: disparate treatment and disparate impact.  Disparate treatment is when people are treated unfairly due to their race, gender, or age. Since these are protected characteristics, this treatment violates anti-discrimination laws. This means it is often easier to identify because it involves explicit bias.

Disparate impact, on the other hand, refers to policies or practices that may seem fair but actually harm certain protected groups. An example of this is when a hiring test disadvantages a specific group more than others. Although not overtly discriminatory, disparate impact is prohibited by anti-discrimination laws.

Actively addressing both intentional discrimination and unintended biases can support fair treatment for all employees. However, promoting equal opportunities requires HR leaders to recognize the differences between these forms of discrimination.

What Is Disparate Treatment?

The distinguishing feature of disparate treatment is that it’s deliberate. For example, if a manager denies a promotion based solely on gender, that is disparate treatment. Similarly, consistently assigning undesirable tasks to workers of a certain race is intentionally discriminatory. Recognizing this behavior is vital for organizations looking to promote fairness and equity in the workplace. 

What Is Disparate Impact?

Also known as adverse impact, this form of discrimination is the unintentional but harmful effects of organizational policies. Even though they are meant to be neutral, some practices can put protected groups at a disadvantage.

This concept highlights the need to examine policies that might inadvertently cause hurt. For instance, if a company mandates a fitness test, it could unfairly disadvantage older or disabled workers who can't meet the same standards as others. Identifying disparate impact can help your organization correct these issues. 

Protected Classes and Title VII

The Civil Rights Act of 1964's Title VII explicitly prohibits employment discrimination based on:

• Race
• Color
• Religion
• Sex
• National origin

Subsequent legislation and court decisions have expanded protections to include age, sexual orientation, and gender identity under certain conditions. Age discrimination is addressed separately under the Age Discrimination in Employment Act (ADEA), which protects individuals who are 40 years of age or older.

Title VII does not explicitly list sexual orientation or political affiliation as protected classes. Sexual orientation, however, has been protected under federal law since the 2020, when the Supreme Court ruled that discrimination based on sexual orientation or gender identity is a form of sex discrimination under Title VII in Bostock v. Clayton County. And, while political affiliation is generally not a protected class under federal law, certain states and local jurisdictions may have laws protecting individuals from political discrimination.

Proving Discrimination

Proving disparate treatment discrimination in a legal context involves several critical elements. First, the plaintiff has to show they belong to a protected group and were treated unfairly because of it. They also need to provide evidence like biased statements or actions. It's crucial to prove a direct connection between this bias and negative job actions, such as being fired.

Addressing disparate impact discrimination takes a different legal route. In this case, plaintiffs often use statistics to show that a seemingly fair job policy hurts a protected group more. Courts then decide if this harm is significant and if the employer can justify the policy for business reasons.

Avoiding Disparate Treatment in the Workplace

1. Employers can use the following strategies to promote inclusivity and avoid disparate treatment in the workplace.  
2. Implement Clear Anti-Discrimination Policies: Develop comprehensive anti-discrimination policies that prohibit bias based on protected characteristics. Communicate with employees so they are aware of these policies and provide regular training to reinforce their importance.
3. Promote Equal Opportunity: Emphasize merit-based decision-making in hiring and compensation. Focus on the qualifications and abilities of employees rather than their personal characteristics.
4. Diverse Hiring Practices: Employ diverse recruitment strategies to attract a wide range of candidates. Focus on creating an interview and selection process that is free from bias and unconscious stereotypes.
5. Address Complaints Promptly: Establish effective complaint procedures so that employees feel safe reporting instances of discrimination. Investigate and address complaints promptly and impartially.
6. Regular Audits and Reviews: Periodically review policies and practices to resolve any potential disparities. This proactive approach can help prevent discrimination from occurring in the first place.

Creating an inclusive workplace not only helps avoid legal issues but also fosters a more engaged and innovative workforce. Employers who prioritize diversity and inclusion are more likely to attract top talent and create an environment where all employees can thrive.

Disparate Treatment vs. Disparate Impact Example

Think back to the example at the start of this article. Was denying Alex a promotion because of their age an example of disparate treatment, or disparate impact?

As you likely know by now, this would be a situation of disparate treatment. They were overlooked for professional advancement because of their age, which is a protected characteristic.

Help Every Employee Thrive

Discrimination of any kind limits a company's performance. It means missing out on valuable contributions from talented employees, can push top talent out the door, and can make it harder to recruit. 

Building a positive and welcoming corporate culture is a critical part of being a company where diversity thrives. A wellbeing program is a valuable contribution to building this type of culture. It’s a clear commitment from your organization to helping every individual feel their best.

More than 50,000 companies already trust Gympass with their employee wellbeing. Speak with a wellbeing specialist today to learn about our holistic program that helps every employee thrive!

References

• Gympass. (2023, October 18). The State of Work-Life Wellness 2024. Retrieved April 15, 2024 https://gympass.com/en-us/resources/research/work-life-wellness-report-2024/. 
• InStride. (2021, April 28). Talent acquisition statistics you need to know in 2023. Retrieved April 15, 2024 from https://www.instride.com/insights/talent-acquisition-recruitment-statistics/.