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Disparate Treatment Versus Disparate Impact Discrimination

By Thomas McKinney

Both Federal and New Jersey state law prohibits employment discrimination based on certain protected classes and characteristics. Discriminatory employment practices come in many shapes and sizes. The impacts of discriminatory employment practices also take different forms. For instance, there is disparate treatment and there is disparate impact in employment discrimination. Let’s take a look at the differences between the two.

Disparate Treatment Versus Disparate Impact Discrimination

Disparate treatment and disparate impact are both terms used in reference to discriminatory employment practice. Disparate impact is sometimes referred to as “adverse impact” whereas disparate treatment is sometimes referred to as “adverse treatment.” While both may refer to discriminatory employment practices, there are important differences between them.

You may hear disparate treatment referred to as “intentional discrimination.” It is the most common form of discrimination. It is discrimination on its face. It is direct discrimination based on an employee’s membership in a protected class. For instance, disparate treatment would be drug testing of only minority job applicants. In a disparate treatment discrimination case, the claimant must be able to show that they are a member of a protected class and that their employer knew this. The claimant must have suffered an adverse employment action and must be able to show that those similarly situated employees who were not in their protected class did not suffer harm as they did. Should the claimant be able to prove these elements, the employer will get the opportunity to present any legitimate, non-discriminatory justifications for their actions. The burden will then shift back to the claimant who will need to prove that the employer’s proffered reason is merely a pretext for discrimination.

Alternatively, you may hear disparate impact referred to as “unintentional discrimination.” Disparate impact happens when apparently neutral employment policies or practices have a disproportionate impact on a protected class of employees. As a result, that protected class of employees experiences the adverse effects of discrimination, albeit unintentional discrimination. In other words, disparate impact occurs when an employment policy is the same for everyone, but results in a negative impact to a particular protected group of employees.

For starters, it is important to note that disparate impact discrimination is not illegal in every case. Should the employer have a legitimate business reason for the practice resulting in the disparate impact, it is allowed. It should also be noted that disparate impact cases can be much harder to prove than disparate treatment cases. A claimant needs to be able to prove that the employment practice caused a disparate impact, a protected class being treated worse than others. The employer then has the opportunity to show that there is a legitimate business reason for the employment practice resulting in a disparate impact. If the employer is able to do so, the employee then needs to prove that the legitimate business reason could have been achieved without the disparate impact.

Employment Law Attorneys

The workplace should give equal opportunities to all. If you have suffered workplace discrimination, reach out to the dedicated team at Castronovo & McKinney. Contact us today.

About the Author
Tom McKinney is an experienced NJ Employment Lawyer in all major areas of labor and employment law, including discrimination, harassment, overtime violations, wage and hour claims, sexual harassment, wrongful discharge, Title VII, ADA, ADEA, FMLA, LAD, FLSA, and all other employment law claims. Tom is admitted to practice in the States of New Jersey and New York, United States District Court for the Eastern District of New York, Southern District of New York, District of New Jersey, and United States Court of Appeals for the Third Circuit. Prior to forming the firm, Tom practiced at Gibbons P.C. in Newark, NJ. If you have any questions regarding this article, contact Tom here today.