Which statement best describes the difference between a disparate treatment and a disparate impact Title VII lawsuit?

What is disparate treatment?

Disparate treatment, also known as adverse treatment, occurs when an employer treats an employee unfairly compared to other employees based on the person’s personal characteristics, especially with regard to protected classes. Protected classes include those defined by Title VII of the Civil Rights Act of 1964, described as “applicants, employees and former employees who are protected from employment discrimination based on race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age (40 or older), disability and genetic information (including family medical history).”
Profiling or disparaging employees based on these characteristics is widely recognized as disparate treatment. For their part, employees can make disparate treatment claims when they believe an employer has discriminated or retaliated against them because of their personal characteristics.
 

How disparate treatment impacts a business

Employers who enable or allow examples of disparate treatment and other discriminatory practices at their company aren’t just setting a morally negative example to others. They can also face costly legal, financial and cultural consequences. Employees may take action when a company violates their rights, resulting in possible fines, lawsuits and legal repercussions. Disparate treatment can also have a severe impact on staff turnover and employee morale, causing productivity losses and feelings of mistrust and frustration among the entire staff or between staff and their employers.
 

Examples of disparate treatment

Disparate treatment ranges from subtle to severe and can occur in any type of workplace. Here are the main types of disparate treatment claims with examples: 
 

Failure to hire

Disparate treatment ranges from subtle to severe and can occur in any workplace. Not all cases are equally easy to spot or clear-cut. Here are some types of disparate treatment claims with examples and complexities.

  For example, hiring bias studies have shown that resumes with names that seem non-white receive fewer interview invitations than those with white-sounding names. If a thoroughly qualified person named Nneka, for example, was rejected for an interview, but the company kept posting ads to fill the position, she could have experienced disparate treatment based on her name’s African heritage.

  A more legally complicated example would be an employer failing to hire someone based on their age when no reasonable factor other than age is an issue. In this case, failing to hire an older individual simply because of their age can be an example of disparate treatment. However, if the available position involves certain health considerations in which age is a safety factor, this basis for discrimination could be considered reasonable.

Conditions of employment

Existing employees who are treated with less consideration than others in the workplace because of their age, sex, gender, religion, ethnicity or other aspects of their identity can be considered victims of disparate treatment in their employment conditions.
For example, a female employee being passed over for a promotion several times in favor of male employees with less experience is a notable case of disparate treatment. In another example, an experienced Black employee who is rejected for a certain position in a company for no reason that employers can clearly justify may be an example of disparate treatment.
Related: Gender Inequality in the Workplace: Things to Look Out For
 

Termination

When a business fires an employee based on discriminatory reasons, this is disparate treatment. Employees who make a wrongful termination claim often have to prove that they were meeting workplace expectations when they were fired or that their employer had unfair standards for them compared to others.
An example of unfair bias is if a manager merely reprimands a white employee who has been taking home office supplies but then discovers a non-white employee with a flawless record taking home a ream of printer paper and fires them. If the manager in question has a history of behaving more harshly toward non-white employees, disparate treatment may be easier to prove.
 

Value staff diversity

Making diversity a core value in your business is the best way to avoid inviting disparate treatment into the workplace. Having people of different races, genders, religions and abilities in leadership positions helps you build policies that encourage diversity.
 

Open channels of trustworthy communication

Provide employees with clear, safe and confidential ways to discuss their concerns about workplace discrimination. Make sure everyone is aware of the proper channels for reporting issues. Having a culture of transparency and respect allows employees to advocate for themselves and prevent future incidents.
 

Set clear personnel policies

Outline clear and reasonably logical criteria for getting a job, earning a promotion, receiving a raise and other key workplace achievements in the employee handbook. Having clear policies in place allows you to have a benchmark for comparing staff behaviors and outcomes.
 

Document employment, management and firing practices

Documentation and record-keeping of the decisions, motivations and practices used to hire, manage and dismiss staff helps clearly show why any decision is made. Instituting this practice can help managers more clearly lay out what motivates their choices and avoid emotional bias. It can also provide evidence that can be used when a legal case is made for disparate treatment.
 

Disparate treatment vs. disparate impact

Disparate impact, also called adverse impact, is different from disparate treatment in that it specifically addresses situations where someone feels they have been disproportionately affected by a seemingly neutral employment policy.

  For example, if a company has a policy of conducting general meetings or other important staff activities that stretch past hours clearly defined by a hiring contract, this could disproportionately affect employees who have to travel further to get home or leave at a certain time for childcare reasons. Although the company may not have intended to discriminate against someone, its policies still cause a disparate impact.

Tips for avoiding disparate treatment

Use these tips to avoid disparate treatment among your staff:
 

Value diversity

Making diversity a core value in your business is the best way to avoid disparate treatment in the workplace. Having people of different races, genders, religions and abilities in leadership decisions helps you build policies that encourage diversity.
 

Open channels of communication

Provide employees with clear, safe and confidential ways to discuss their concerns about workplace discrimination. Make sure everyone is aware of the proper channels for reporting concerns. Having a culture of transparency and respect allows employees to advocate for themselves and prevent future incidents.
 

Set clear personnel policies

Outline the criteria for getting a job, earning a promotion, receiving a raise and other key workplace functions in the employee handbook. Having clear policies in place allows you to have a benchmark that you can use for comparing staff behaviors.
 

Frequently asked questions about disparate treatment

What is comparative disparate treatment?

Comparative disparate treatment happens when a business has a history of denying service to people who belong to a certain group. An example would be a nail salon that refuses to give spa services to disabled people.
 

What is overt disparate treatment?

Overt disparate treatment occurs when someone obviously and clearly judges or punishes an employee based on their gender, race, religion or another personal characteristic. If a manager told a female employee that she wouldn’t be considered for a promotion because men are better leaders, this is an example of overt disparate treatment.
 

What evidence is needed to show disparate treatment?

The standards of evidence for a civil claim of disparate treatment may vary from jurisdiction to jurisdiction, but, generally speaking, the following apply. An employee has to make a prima facie case showing that:

• They belong to a protected class under Title VII
• Their employer or manager knew they belong to a protected class
• They suffered an adverse employment action
• This action didn’t occur to other employees outside a certain protected class because they were treated more favorably

Proving these elements can often shift the burden of proof to the employer.
 

Is harassment considered disparate treatment?

Harassment is generally considered offensive or hostile conduct in the workplace, not an explicit example of disparate treatment. However, if the person being harassed, sexually or otherwise, also gets disparaged in their employment position for having complained, this could be considered disparate treatment as well.