Disparate TREATMENT vs. Disparate IMPACT
Some otherwise very knowledgeable and smart HR folks, and perhaps even lawyers, may have difficulty understanding the difference between disparate treatment and disparate impact. Indeed, in some old Supreme Court cases, the supreme court justices appeared to begin to merge the two concepts somewhat.
I found that one of the clearest explanations for disparate treatment versus disparate impact may be found in Ross Runkel’s blog. Among the many impressive postings in this blog is a section entitled: “Employment Law 101,” which I believe is worthy of your time.
What is particularly helpful, I think, in this blog, is how clearly the author writes! But, more to point of the present posting, Ross Runkel does a wonderful job of clarifying what disparate treatment is compared to disparate impact. Here are some of the key points, but I urge you to read the details in
the posting as well.
According to Ross, disparate treatment has several steps, including the basic concept, which he defines as “the employee is claiming that the employer treated her differently than other employees who were in a similar situation.” Then, he goes into some specific details about the prima facie case, the employer’s rebuttal, and the pretext step that must be argued by the plaintiff.
Diparate IMPACT on the other hand, operates quite differently if one is to proof that discrimination has or has not occurred. According to Ross Runkel, disparate impact occurs if: “as matter of statistics, [employment practices] have a greater impact on one group than on another.” Read more on his description of disparate impact here.
Ross Runkel notes that in disparate impact:
if the employees prove that a practice causes a disparate impact, then the employer must demonstrate that the practice “is job related for the position in question and consistent with business necessity”
He quite correctly points out that disparate impact cases “are complex (and expensive) because they require the use of experts and involve sophisticated statistical methods…”
Note that proving intention is unnecessary for the plaintiff to win in a disparate IMPACT case. Disparate impact has been used in arguing hiring, promotion, pay, termination, and other kinds of cases.