Disparate Treatment vs Disparate Impact
One of the most important concepts to understand when dealing with the EEOC’s guidelines for Title VII compliance is the difference between disparate treatment and disparate impact. It is not only important to understand the difference between these two concepts, but also to understand the different factors the EEOC uses when assessing a possible disparate treatment or disparate impact violation.
Disparate treatment is a straight-forward, fairly obvious concept: specific treatment of an individual based on or in any way affected by his or her race or national origin that is different from treatment of another individual of a different race or national origin.
Disparate treatment violations are not simply limited to situations such as refusing to hire an applicant because of his or her race. The EEOC has identified the following types of evidence that may constitute disparate treatment violations: record of biased or derogatory statements or stereotypes, hiring inconsistencies, similarly situated comparators (i.e. two applicants with nearly identical resumes but different races/national origins), employment testing (e.g. drug tests for some applicants of certain races/national origins, but not others), statistical evidence in connection with race/national origin and the weighing of criminal records in the employment process.
As you can see, the concept of disparate treatment, while appearing simple, is actually much more complicated in the types of behaviors that fall under the EEOC’s interpretation.
The concept of disparate impact, however, can be even trickier for employers than the interpretation of disparate treatment offenses.
Disparate impact refers to a neutral policy of an employer that has the effect of disproportionately negatively affecting a certain protected group. It is important to note the word “neutral” in the EEOC’s definition.
An employer can prevent disparate treatment violations by implementing strictly neutral policies, but these same neutral policies could at the same time open an employer up to disparate impact violations.
How is this so?
Take for example a neutral employment policy: applicants with a felony conviction are barred from employment. This seems like a color-blind, completely unbiased policy. As an employer you make sure that this policy is strictly enforced and applied equitably and uniformly to applicants regardless of race and national origin. What could possibly be the problem?
The problem is that this neutral policy could have the unintended effect of disproportionately screening out applicants from a specific protected class. The policy, while neutral, does not take into consideration the many facts that certain races are more likely to be arrested, convicted of crimes, and serve time in prison. Because of these facts, employers can inadvertently screen out applicants of a certain race through these types of policies. This type of situation falls under the EEOC’s definition of disparate impact discrimination, and the EEOC can go after employers with these types of violations. Furthermore, the EEOC explicitly states that “an employer’s evidence of a racially balanced workforce will not be enough to disprove disparate impact [allegations]”.
So as an employer or HR professional how do you identify which policies qualify as disparate impact discrimination? And what can you do about it?
We will answer those questions and more in our next post in the EEOC series!