What is systemic disparate treatment?

60 Pages Posted: 28 Mar 2011 Last revised: 3 Feb 2012

At the same time that it becomes increasingly clear that organizational change is crucial to reducing workplace discrimination, longstanding theories of systemic discrimination are under attack. This Article exposes the threat posed to the mainstay of systemic theories – systemic disparate treatment theory – under which plaintiffs frequently use statistics (along with other evidence) to establish that discrimination is widespread within the defendant organization. The threat to private enforcement of Title VII against systemic disparate treatment is starkly evident in the current battle over class certification, but the threat goes much deeper than whether private plaintiffs will be able to obtain class certification in employment discrimination cases – it goes to the substance of systemic disparate treatment law.

This Article uncovers the “policy-required” view of entity responsibility that underlies the dissenting opinion in the Ninth Circuit class certification decision in Dukes v. Wal-Mart and exposes the implications of that view for the future of systemic disparate treatment law. It also shows how an individualistic model of organizational wrongdoing more broadly has led to under-theorizing, even mis-theorizing, of entity responsibility for systemic disparate treatment. Drawing on developments in other areas of organizational wrongdoing, the Article advances a “context” model as theoretical grounding for existing systemic disparate treatment law. A context model emphasizes the role of organizational context in producing wrongdoing. Viewed through a context lens, systemic disparate treatment law imposes direct liability on employers for regular, widespread disparate treatment as well as for discriminatory policies because in those circumstances the employer is likely to be producing or to have produced disparate treatment within the organization.

Keywords: discrimination, employment, civil rights, gender, race

Title VI of the Civil Rights Act of 1964 prohibits employers from discriminating based on race, color, religion, sex or national origin. This includes disparate treatment and disparate impact.

The difference between disparate impact and disparate treatment is that disparate treatment is intentional discrimination, while disparate impact is unintentional.

If your organization’s policies, practices or procedures are unbiased but end in a disproportionate impact on protected groups – race, color, religion, sex or national origin – this would be disparate impact.

On the other hand, if your organization’s policies, practices or procedures are set up to intentionally eliminate a protected group based on race, color, religion, sex or national origin, this would be disparate treatment. You cannot intentionally single out or treat an individual in a protected group less favorably.

Examples of Disparate Treatment and Disparate Impact

Example 1: Disparate Treatment

• If only African American applicants are required to take a pre-employment assessment test.

Disparate Impact

• If you test all applicants and only African Americans are eliminated based on the results of the assessment.

Example 2: Disparate Treatment

• During the annual re-screen of all of your employees, you re-screen all of your female employees and only half of your male employees.

Disparate Impact

• During your annual re-screen, the results from the background check showed only female employees had new criminal record convictions that would affect their current role or position within the organization.

Class-Action Lawsuits

All applicants have the right to claim their employer discriminated against them during the hiring process, but they have to show if the discrimination was intentional.

For an applicant to say they were a victim of intentional discrimination – disparate treatment – he or she has to show they were treated unfairly based on race, color, religion, sex or national origin. If the applicant can’t show there was intent, it would be disparate impact.

Everyone should have a fair chance in the workplace. Federal and state laws make it illegal for employers to treat some workers worse than others because those workers are in a protected class.

What Is a Protected Class?

Protected classes are groups of people who the law protects from discrimination. For example, Title VII of the Civil Rights Act prohibits discrimination against people because of their race, religion, national origin, color, or sex. Other federal, state, and local laws may protect against discrimination on the basis of age, sexual orientation, and disability. Each of these groups, in the language of employment discrimination law, is called a “protected class.”

What Is the Difference Between Disparate Treatment and Disparate Impact?

The law recognizes two types of illegal discrimination. Disparate treatment refers to intentional discrimination, where people in a protected class are deliberately treated differently. This is the most common type of discrimination. An example would be an employer giving a certain test to all of the women who apply for a job but to none of the men.

Disparate impact refers to discrimination that is unintentional. The procedures are the same for everyone, but people in a protected class are negatively affected. For example, say that job applicants for a certain job are tested on their reaction times, and only people with a high score are hired. This test will discriminate against older workers, who are less likely to have fast reaction times. Whether this test is illegal will depend on whether fast reaction times are necessary for the job. Disparate impact discrimination is not always illegal. If an employer has a legitimate, necessary, and job-related reason for applying its procedures, then it is allowed to do so.

For example, say a fire department required job applicants to carry a heavy load up several flights of stairs. Say a higher percentage of male applicants pass the test, compared to the number of female applicants who pass. In that case, the test would have a disparate impact on women, who are a protected class. But if the fire department can show that carrying heavy loads up stairs is a necessary part of the job, then the test would be legal even if it favored men over women.

But say an accounting firm gave job applicants the same test, requiring them to carry heavy weights upstairs. In this case, the resulting disparate impact discrimination would be illegal. There is no legitimate job-related reason why accountants would need to carry heavy weights. A female job applicant who failed the accounting firm’s test would have a good case for a sex-discrimination lawsuit if she could show the test was the reason she didn’t get the job.

Proving that Illegal Discrimination Occurred

Knowing the difference between disparate treatment and disparate impact discrimination will give you an idea about what you will need to prove if you file a discrimination case.

Proving a Disparate Treatment Case

If your case involves disparate treatment, where the discrimination was deliberate, you need to show that:

• You are a member of a protected class.
• The employer knew you were in the protected class.
• The employer did something that harmed you (for example, did not give you a promotion or a bonus, gave you an unfairly bad performance review, fired you, or, if you were a job applicant, did not hire you).
• Other people who were in a similar employment situation but were not in your protected class were treated better.

The employer then gets a chance to show that it had a legitimate non-discriminatory reason for its actions. Then you get a chance to show that this reason was just a pretext, and the employer’s real reason was to discriminate.

Proving a Disparate Impact Case

Disparate impact cases can be harder to prove. In a disparate impact case:

• You need to show that a specific employment practice caused people in your protected class to be treated worse than people not in the protected class. This part of the case may require using statistical analysis.
• The employer then has to show that it had a legitimate business reason for this specific practice. If the employer can’t show this, then you will win the case.
• If the employer does show a legitimate business reason, the ball then goes back into your court. You will need to show that the employer could have achieved the same business goal using some other practice that didn’t discriminate against your protected class.

Employment discrimination is a complex area of the law. Consulting an attorney who is highly experienced in employment law is essential to give you the best chance to win your case.

Why Sue for Employment Discrimination?

If you win an employment discrimination case, you could receive many remedies, which may include back pay and benefits, placement into a job that had been unfairly denied to you, and court costs and attorney’s fees. The company will also be ordered to stop its discriminatory practices and to take action to prevent future discrimination. Because of this, your lawsuit may benefit many people besides yourself, so lasting good may come out of the harm that you suffered.

We Want to Help

Everyone deserves to be treated fairly at work. If you believe you have been discriminated against in your workplace or during a job interview because of your race, religion, color, natural origin, sex or gender, disability, or sexual orientation, our experienced employment discrimination attorneys would be glad to talk to you. The Raynes & Lawn law firm has been dedicated for half a century to helping people get justice. We have obtained billions of dollars in remedies for our clients and have been honored with national and local recognition for our outstanding legal work. Fill out our contact form, or call us at (800) 535-1797, and a member of our team will be in touch. We offer a free, no-obligation consultation where we will evaluate your situation and tell you more about what you can expect.

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