Disparate Impact vs. Disparate Treatment
What is the difference between Disparate Impact and Disparate Treatment? How do these two theories play out regarding employee discrimination cases? These are questions I hope to answer throughout this paper by using a couple of different court cases which explain or give detail as how employee discrimination is defined by our court system. Understanding how each theory works will provide employers and managers the opportunity to implement better workplace policies reducing the chances of employee discrimination.
Before we dive right into the actual court cases, let’s take a look at the definitions for both the Disparate Impact theory and the Disparate Treatment theory. According to the online Encarta dictionary, Disparate Impact is the indirect discrimination in employment or education against a class of people, e.g. by means of a psychological test (Dictionary, 2006). Ross Runkel explains disparate impact and disparate treatment as following:
Disparate impact" is a legal theory for proving unlawful employment discrimination. However, most actual cases use the "disparate treatment" theory. Disparate impact is the idea that some employer practices, as matter of statistics, have a greater impact on one group than on another. In a disparate treatment case, the employee is claiming that the employer treated her differently than other employees who were in a similar situation.
The year 1971 played a significant role in the shaping of American laws regarding employee discrimination in the form of disparate impact illustrated by the U.S. Supreme Court case Griggs vs. Duke Power Co (401 US 424). Up until the 1970’s, Duke Power Plant was paying their highest black employees less than the lowest paid white person in any other department. As well, right after Title VII became effective Duke Power Co. implemented certain requirements for employment along with possible department transfers for blacks only. The requirements included having a high school diploma and passing scores on two intelligence tests. White people already working for Duke were grandfathered in, not having to meet the new requirements. Black employees challenged the requirements under Title VII of the Civil Rights Act of 1964. The allegation stated that the new requirements were not job related and can have a negative impact on blacks as a whole. The U.S. Supreme Court held that whatever job requirements that could affect the proportion of protected groups, under Title VII, should be shown as job related. (Bennet-Alexander, Hartman 2004)
Disparate Impact can be a thorn in an employer’s side especially when trying to establish guidelines for hiring, training, promoting, terminating as well as determining benefits. Employers have to be extremely careful they do not cross the line regarding discrimination when screening out possible employees. Several factors have been recognized by the courts as disparate impact criteria: credit status, arrest records, unwed pregnancy, height and weight requirements, marital status, and education level, which could affect certain classes of people.
While Disparate Impact may begin with a single employee it is proven in a court of law to have negative consequences for an entire class of people covered under Title VII. Disparate treatment, on the other hand, argues that an employee is being discriminated against or treated differently than someone of similar status. The employee also argues that the discrimination is based on his or her race, color, religion or nation origin. Disparate Treatment begins with a “prima facie” claim by an employee. The court then begins to rule out whether or not the company acted on the basis of discrimination used in the employees’ termination, discipline or treatment.
This second case, McDonnell Douglas Corp. vs. Green (411 U.S. 792), demonstrates how a disparate treatment ruling can be determined. Mr. Green was a black civil rights activist as well as an employee of McDonnell Douglas during the early 1970’s. Green was eventually terminated from McDonnell Douglas for participating in a protest against his employer. Later on Green re-applied for the position only to be rejected. Green went on the file a “prima facie” discrimination case against McDonnell Douglas on the basis of racial discrimination. The prima facie case must first prove several things: one, the complainant must be a minority; two, he or she has applied for the job and is appropriately qualified; three, despite his or her qualifications, the job has not been filled; and fourthly, after he or she has been rejected the company continues to seek qualified applicants comparable to the complainants.
Green argued that McDonnell Douglas rejected his application based on his race. However, McDonnell Douglas explained that they had a policy against re-hiring someone involved in unlawful conduct. This case sets the precedent for future court cases under Title VII guidelines in determining the proof of an employer’s decision to terminate an employee as well allowing the plaintiff the full opportunity to prove the employer acted on a discriminatory base. The ruling difference would if the employer continued to screen potential candidates from all races for employment. Once the prima facie case has been established the court could discover ulterior motives behind why the individual may have been discriminated.
In summary, Disparate Impact and Disparate Treatment cases can prove to be somewhat similar on the basis of discrimination but totally different regarding the outcome. Disparate Impact may be intentional or unintentional however, the court may find that a company’s screening process can ultimately have an adverse effect on protected classes covered under Title VII of the Civil Rights Act of 1964. On flip side, Disparate Treatment cases prove on the basis of a legitimate “prima facie” case whether or not a company intentionally, through a series of tests, has singled out and discriminated a person regarding his or her race, color, religion, national origin, or gender.
Bennet-Alexander, D. D., Hartman L. P. (2004). Employment law for business. New York, NY: McGraw Hill/Irwin.
Runkel, Ross (n.d.). Disparate Impact #20. Retrieved August 29, 2006, from Employment Law 101. Web site: http://www.lawmemo.com/101/2006/01/disparate_impac_1.html
Runkel, Ross (n.d.). Disparate Treatment #15. Retrieved August 29, 2006, from Employment Law 101. Web site: http://www.lawmemo.com/101/2005/12/disparate_treat_1.html