Disparate Impact vs. Disparate Treatment

This paper discusses the differences between disparate impact and disparate treatment in the context of discrimination law.

Disparate Impact is a legal theory that states an employer’s policy or practice may be considered discriminatory if it has a negative effect on members of a protected class, even if there was no intent to discriminate. Disparate Treatment, on the other hand, refers to intentional discrimination based on race, color, religion, sex, or national origin.

Under Disparate Impact, any employment practice or policy can be challenged as being potentially discriminatory if it adversely affects a protected group without having a significant business justification for its use. Employers must prove that any such policies are necessary for their business operations in order for them to remain valid.

Under Disparate Treatment, discriminatory behavior can be found in both direct and circumstantial evidence. In other words, an employer may be accused of intentional discrimination if there is any evidence that the employer treated someone differently because of their race, color, religion, sex or national origin. This type of discrimination does not require proof of intent to discriminate as it does in disparate impact cases.

In sum, the differences between disparate impact and disparate treatment lie in two areas: intent and business justification. While Disparate Impact requires employers to prove a policy or practice has a significant business justification for its use, Disparate Treatment applies to intentional discrimination regardless of whether there was an underlying business purpose or not. As such, employers should be aware of both legal theories when developing and implementing policies in order to avoid potential discrimination claims.