Understanding Disparate Treatment: Key Differences and Implications

We asked a few people about their "ideal workspace" looks like. Guess what it was? Not fancy offices with huge canteens and a good salary package!

It was a place where there was zero discrimination and equality in treating each employee.

Today, it has become crucial to foster diversity in any workplace, as it helps in engraving innovative ideas to run a business.

Navigating workplace discrimination laws is a challenge for employers and employees. Disparate treatment is a serious issue. It is both intentional and unintentional discrimination against team members. It is based on their protected rights and class. 

But can disparate treatment be intentional and unintentional? 

Let's clear both of them with examples for each!

Intentional disparate treatment:

Consider a person in a position of authority, such as a CEO or a manager, and choose a male candidate for a particular role over a female candidate because they tend to believe that men are better suited for leadership. This gender-based discrimination is the perfect example of intentional disparate treatment.

Unintentional Disparate Treatment:

A company enforces a "no head coverings" policy, unintentionally impacting employees who wear religious attire, like hijabs or turbans. Though unintentional, this policy treats certain religious groups differently. This is not a fair decision considering the religion.

Now, let's talk stats.

Recent studies have shown the urgency of addressing this issue to the EEOC. In 2022, almost 60,000 workplace discrimination charges were filed, including several instances of intentional discrimination.

This is not limited to this blog; we will gain an understanding of disparate treatments and how to overcome them. We have also researched and shortened a few cases to understand better!

By the end, you'll have a clearer understanding of how to foster an equitable workplace that aligns with legal standards and promotes a genuinely inclusive culture.

What is Disparate Treatment?

By now, we have understood a bit about disparate treatment. It is clear how partiality is followed and entertained in every workplace. Discrimination has several characteristics, and it has occurred since humankind's evolution.

Protected classes encompass attributes based on race, color, gender, age, religion, national origin, and disability status, which are legally safeguarded to prevent discrimination. When any of these traits influence an employer’s decision-making, it crosses the line into disparate treatment, a harmful practice that severely affects individuals and organizations.

There are various vital aspects to look at and understand;

• Intentional Disparate Treatment
• Demonstrating discriminatory intent
• Legal and reputational risks
• Fostering a diverse, inclusive workplace

Disparate and unfair treatment is always a conscious choice. Still, sometimes, due to a lack of awareness, there are chances of unintentional acts that can have an impact and lead to some severe consequences.

Disparate Treatment vs. Disparate Impact

It is important to understand the thin line difference between disparate treatment and disparate impact. 

Disparate Impact Discrimination

It occurs when certain companies' policies affect a few groups of individuals working with the company. It is surely the uncertainty of discrimination and is considered to be unintentional. It arises when a neutral policy, by chance, disproportionately disfavors an identifiable group without intent.

The company is unaware and does not even realize that the policy impacts certain individual groups, but it is still there, right? Disparate impact claims arise when certain groups are triggered, even though the policy was not intentionally practiced.

Let's understand with the example;

If a company must hire a candidate at least 6 feet tall, it may discriminate against those under that height. Also, if a company requires candidates of a certain gender, such as “only female candidates should apply,” this may prevent some talented and deserving male candidates from applying.

Disparate Treatment Discrimination

Disparate treatment discrimination is purely intentional. It occurs when an employer directly treats an employee or colleagues based on characteristics like race, gender, or religion. When offensive shaming is acted upon, it is a pure offense to an individual. 

Though it is seen clearly, proving it legally and taking action is challenging.

It is seen in multiple corporate offices where a man and a female candidate for the company both apply for a promotion. Still, one of them is promoted not because of performance but because of disparate treatment based on gender. 

This is an intentional act of choosing a female candidate over a male deserving candidate.

Real-Life Cases On Discriminatory Effects

Inclusive communities at various companies and workplaces face certain issues. Let’s understand their case and get awareness through them.

Employment Discrimination

In 2022, the EEOC reported $99.3 million in cases of race-related discrimination, with the underlying financial and social impact of disparate treatment in multiple workplaces. Many Fair Housing Act cases have led to a definition of legal protections against discrimination-influencing workplace policies.

The Equal Employment Opportunity Commission enforces laws against discrimination in the workplace for the benefit of employees.

A healthcare network has faced litigation for setting higher wages for new male employees than female employees who are much more experienced and have similar qualifications. Such gender-based disparities in compensation reflect how pay inequity affects career advancement for women, even when they demonstrate equal or greater experience.

Racial Discrimination at Hooters

In May 2020, 8% of the Hooters Girls were dark skin tones. The complaint filed states that they have brutally experienced discrimination and compared dark tone skin color with white ones. Not only this, but preferential treatment was also observed from white employees.

Religious Discrimination

Religious discrimination is discrimination against employees based on their religion. One example is an employee who was fired because of the religion followed by that individual candidate. The question is, how does an individual's religion affect the workplace?

Another example would be workers not given the same access to promotion opportunities as their colleagues because of their different religious backgrounds.

The Fair Housing Act prohibits housing discrimination and sets the template for all anti-discrimination laws in employment. Some religious discrimination was also involved. It's the 21st century. We must end religious discrimination because Humans are humans!

Physical Requirements in Hiring Practices

There are multiple firms and artistic institutions, such as acting and drama schools, where there is a requirement for a candidate of a particular height to play that character. 

Some construction companies hired employees of certain heights only. This criterion represented indirect discrimination in the hiring process.

This clearly showed that physical requirements can result in disparate impact provisions that can adversely affect the business at a later stage.

Protected Classes Under Title VII

Title VII of the Civil Rights Law of 1964 legally shields employees from discrimination in the workplace. These protected classes aim to promote equality. They ensure hiring, promotions, and other job decisions are based on performance and not bias.

Title VII protects a broad class of groups and makes it inappropriate to treat members of any protected groups inequitably in the workplace. Compliance Title VI of the Civil Rights Act of 1964 prohibits employers from discriminating based on race, color, religion, sex or national origin.

Let’s understand the Five Core Protected Classes that come under Title VII.

Five Core Protected Classes;

Number “VII” in the title suggests the core primary classes, and they are;

1. Race
2. Religion
3. Color
4. Sex/Gender
5. National Region

These protections mean that employers cannot make employment decisions based on the discrimination of the classes mentioned above. The protection is also extended to cover pregnancy, sexual orientation, and overall gender identity, which broadens the act's impact inclusively.

Many disparate impact lawsuits uncover hidden biases in company policies that unintentionally discriminate against certain groups. Even Military status is a protected characteristic, ensuring that veterans are not unfairly discriminated against based on these classes or in any other form.

Employer Applicability and Scope

The Civil Rights Act of Title VII applies to all employers with 15 or more employees. The anti-discrimination law aims to cover a vast portion of the workforce. This provision is crucial because it holds organizations accountable for treating all individuals fairly, regardless of their background.

Purpose of Title VII’s Protections

These protections have a simple but powerful goal. They aim to ensure equal opportunity for everyone in the workplace. Title VII requires employers to use objective, job-related criteria in hiring. This includes skills, experience, and performance, as it aims to prevent biases and foster an inclusive work environment.

Age is considered to be a disparate impact liability

Apart from other discrimination factors, age is an unseen factor that eradicates discriminatory practices. It comes under the Age Discrimination in Employment Act (ADEA) class. Age Discrimination in “Employment Act” prohibits discrimination against older workers, safeguarding them from treatment and affecting their rights.

This act protects all candidates aged 40 and older to prohibit discrimination. It ensures that older employees and job applicants are not sidelined due to factors like age.

How To Avoid Intentional Discrimination?

When the organization is fully aware of the discrimination, it is time to stop and avoid it altogether. Taking precautions and ensuring everyone follows the rules strictly can be the first step.

We have listed a few pointers that'll help to avoid intentional discrimination in the organization.

1. Promote Equal Opportunities

A clear company policy will provide equal opportunities to employees and ensure that it is consistently applied to everyone, including female and male applicants. Offering financial aid or resources for employee development can promote a more equitable workplace. Decisions made in the company should be based on performance and not on protected characteristics.

2. Conduct Disparate Impact Analysis

Regularly perform disparate impact analysis to detect any significant disparity or adverse impact in various employment decisions. This will help identify and address any unintentional biases in challenged practices.

3. Train Managers to Recognize Unconscious Bias

Provide training to counteract unconscious prejudices that can affect hiring, promotions, or deciding the pay for deserving candidates. Each employee should feel respected with zero acts of discrimination, and this is only possible when higher authorities, like managers, are aware of it and timely analyze the activity. 

In short, you can also say, “Aware Managers = Happy Employees.”

4. Stay Informed on Civil Rights Laws

Civil rights laws and the Employment Act should be understood mandatorily, which requires overall compliance with laws. It is important to familiarize yourself with the key cases, such as Duke Power and Supreme Court-held rulings, to guide fair employment practices. 

Make sure your organization is aware of civil rights against discrimination acts and that no employee is harmed intentionally or unintentionally.

5. Review Policies Regularly

Assess policies for the overall statistical disparity that confirms they don’t unintentionally affect any particular group. Revising challenged practices that the court rejected in the past disparate lawsuits is important. The court noted that even unconscious policies can run afoul of the anti-discrimination provisions if they have disparate impact on protected groups.

Consequences of Disparate Treatment

Some of the above-mentioned types of discrimination might not seem serious to most, but being involved in disparate treatment and against the law can be a serious issue. It is better to stay aware than to fall into problems and face consequences.

Such acts may require revisions if there is evidence that inappropriate acts affect the protected group. Therefore, knowing about the consequences and preventing unnecessary problems caused by disparate treatment becomes mandatory.

Evaluating a policy's practical significance is essential to ensure it doesn't inadvertently impact protected groups.

Legal and Financial Penalties: 

Employers who discriminate tend to face potential lawsuits that result in costly settlements and other financial penalties. It becomes very tough for someone who is working with a low-medium salary to pay such penalties. 

Reputational Damage:

Discrimination harms the employer’s and company’s reparation, leading to negative publicity and loss of trust. One bad review by an employee can damage the company's overall reputation.

Loss of Talent:

Biased treatment of employees can gradually draw talented and skilled employees away from your organization. This is difficult for the company as it will need more talent for performance.

Key Takeaways On Disparate Treatment

It is essential to understand and address both disparate treatment and disparate impact. For building fair and inclusive workplaces, disparate impact refers to the unintentional consequences of policies that may seem neutral but may result in unwanted discrimination.

Employers can work productively if strict policies are applied, followed, and complied with, such as laws like Title VI. Also, genuine support would push employees to rely on the company for various other reasons.

For the well-being and maintenance of the company's positive reputation, it becomes mandatory to always adhere to and stay aware of updated laws. Discrimination creates unnecessary disputes and hate, and why would one want to suffer or witness that, too, in a workplace?