Disparate treatment occurs when an employer deliberately discriminates against applicants or employees on the basis of race, religion, sex (including gender identity and pregnancy), gender, sexual orientation, color, or national origin. Laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) all prohibit discrimination against protected groups of individuals.
Disparate treatment can include any of these:
Refusal to hire
Reason for termination
Refusal to promote qualified employees
Establishment of job requirements that are unrelated to Bone Fide Occupational Qualification (BFOQ)
For disparate treatment to occur, these things must be present:
The employee or applicant is a member of a protected class.
When the disparate treatment occurred, the employer had to know that the employee or applicant was a member of a protected class.
The employer negatively acted against the employee or applicant.
People who were not members of a protected class received more favorable treatment.
Disparate treatment should not be confused with disparate impact, which usually occurs unintentionally.
If a company requires that only Black Americans are required to complete pre-employment assessment tests, this is disparate treatment. Another example would be if a company does an annual re-screening of all female employees while excluding male employees from the screening.
is a term that refers to the unconscious bias that exists when a person is naturally inclined to favor someone who shares things in common with them. In some cases, affinity bias can lead to favoritism.
results when a person is affected by an employment practice or policy that has an adverse impact. If a legal review finds a disparate effect on compensation, hiring, termination, or advancement, the employer can face fines or penalties.
refers to policies, practices, or procedures that appear neutral but may negatively impact a legally protected group. In some cases, disparate impact is unintentional but nonetheless harmful.