Both disparate impact and disparate treatment refer to discriminatory practices . Disparate impact is often referred to as unintentional discrimination, whereas disparate treatment is intentional. The terms adverse impact and adverse treatment are sometimes used as an alternative.
What is the theory of disparate treatment?
Disparate treatment occurs when an employer treats some individuals less favorably than other similarly situated individuals because of their race, color, religion, sex, or national origin. ... The basis of the disparate treatment theory is differences in treatment between similarly situated individuals .
What are some examples of disparate impact?
Disparate impact refers to discrimination that is unintentional. The procedures are the same for everyone, but people in a protected class are negatively affected. For example, say that job applicants for a certain job are tested on their reaction times , and only people with a high score are hired.
What is the difference between disparate treatment and adverse impact?
This includes disparate treatment and disparate impact. The difference between disparate impact and disparate treatment is that disparate treatment is intentional discrimination , while disparate impact is unintentional.
What is the test for disparate impact?
Proving Disparate Impact
To get a disparate impact case off the ground, the employee must present evidence that an employer’s neutral policy, rule, or practice has a disproportionate negative impact on members of a protected class .
How can we prevent disparate impact?
- DO: Clearly define job responsibilities. ...
- DON’T: Require specific physical traits or genders. ...
- DO: List specific job skills. ...
- DON’T: Go overboard with requirements. ...
- DO: Ask everyone the same interview questions. ...
- DON’T: Ask Illegal questions.
How do you establish disparate impact?
To establish an adverse disparate impact, the investigating agency must (1) identify the specific policy or practice at issue ; (2) establish adversity/harm; (3) establish significant disparity; [9] and (4) establish causation.
Can you treat employees differently?
Employers are allowed to treat workers differently based on their individual job performance and can discipline and reward them differently based on that. It is also not unlawful for an employer to treat an employee differently because of personality differences.
What is the burden of proof in a disparate treatment discrimination case?
To prove a disparate treatment claim, an employee must first present enough evidence to allow the judge or jury to infer that discrimination took place . ... If the employee can present a prima facie case, then the employer must state a legitimate, nondiscriminatory reason for the decision.
Why is disparate impact important?
A facially neutral employment practice is one that does not appear to be discriminatory on its face; rather it is one that is discriminatory in its application or effect.” Where a disparate impact is shown, the plaintiff can prevail without the necessity of showing intentional discrimination unless the defendant ...
What is the disparate impact rule?
The 2013 rule sets out a three-pronged test: (1) a policy, even one that is neutral on its face, has a discriminatory effect when it actually or predictably results in disparate impact on a group of persons or creates, increases, reinforces, or perpetuates segregated housing patterns because of race, color, religion, ...
What is the four fifths rule?
Adverse impact and the “four-fifths rule.” A selection rate for any race, sex, or ethnic group which is less than four-fifths ( 4/5) (or eighty percent) of the rate for the group with the highest rate will generally be regarded by the Federal enforcement agencies as evidence of adverse impact , while a greater than four ...
What is systemic disparate treatment?
International Brotherhood of Teamsters, the systemic disparate treatment theory provides plaintiffs with a method for creating an inference of unlawful discriminatory intent if plaintiffs can first present sufficient statistical evidence establishing that the employer was engaged in a “pattern or practice” of ...
How is adverse impact determined?
A four-step process determines adverse impact: Calculate the rate of selection for each group (divide the number of persons selected from a group by the number of applicants from that group) . Determine which group has the highest selection rate. ... If it is, adverse impact is indicated in most circumstances.
Who has the burden of proof in establishing disparate impact?
Weighing in on a split among the circuits, the 5th U.S. Circuit Court of Appeals has ruled that the ultimate burden of proof in a disparate impact discrimination case under Title VII lies with the employee , not the employer.
What is the company’s best defense against a claim of disparate impact?
[2] “Business necessity ” is the defense to a claim of disparate impact under Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.
