What Is The Difference Between Disparate Impact and Disparate Treatment Discrimination?

Employment-based discrimination is prohibited when it is based on the workers’ protected characteristics. When it happens, it will take one of two forms, including disparate impact or disparate treatment. Each type requires a different analysis and burden of proof. To learn more about these types of discrimination, contact the employment attorneys at Swartz Swidler.

What is disparate treatment?

The Supreme Court defined disparate treatment as when employers treat certain employees with less favor than others because of their religion, sex, national origin or race. Employers may be held to be liable if the treatment was caused by discriminatory motives rather than legitimate reasons.

What is disparate impact?

Disparate impact discrimination looks at the disparate consequences of an employer’s actions on members of a protected class. This type of discrimination involves employment policies and practices that are facially neutral but that have more adverse impacts on members of the protected group. Employers might not be liable if they can show that the actions are justified out of business necessity.

Types of disparate treatment claims

Disparate treatment claims fall into three primary categories, including wrongful terminations, failures to hire and the conditions and terms of employment. To prove a failure to hire case, you will need to prove the following:

  • You are a member of a protected class.
  • You applied for a job for which you had the qualifications and for which the employer was seeking applications.
  • Despite your qualifications, you were not hired.
  • The company continued looking for applicants with your qualifications after it rejected you.

To prove a wrongful termination claim, you must also prove your membership in a protected class and that you were fired. You will have to show that your job performance at the time of your termination met the legitimate expectations of your employer and that you were replaced by someone who was not a member of your protected class.

For terms and conditions claims, you will need to prove your membership in a protected class and that you suffered an adverse job action. You will also need to show that your employer acted more favorably to similarly situated employees who were not members of your protected class and that you had the qualifications for your job.

What are the elements of a prima facie disparate impact case?

In a disparate impact case, you will focus on the disparity that you are challenging. You will need to show proof that there is a disparity and that it directly results from a specific employment practice, policy or device. You will also need to show that the practice, policy or device was unnecessary and that your employer could have chosen other ways that are just effective while being less discriminatory.

Proving discrimination claims can be complex, necessitating the help of an attorney. Contact Swartz Swidler today to schedule an appointment with an experienced employment lawyer.