What is the difference between “Disparate Treatment” and “Disparate Impact”?

The California Fair Employment and Housing Act (FEHA) prohibits discrimination against applicants and employees for a variety of protected classes including, but not limited to: age, race, sex, gender identity, and marital status (See blog entitled “What is FEHA” for more details). Discrimination in the workplace can fall under the two categories of disparate treatment and disparate impact, and correctly deciphering which one you are experiencing is the first step in pursuing legal action against your employer.

Disparate treatment is the more common type of discrimination. It refers to a situation or policy in which an applicant or employee is treated differently because that person belongs to any of the protected classes under FEHA. Disparate treatment can usually be determined by comparing the applicant or employee to similarly situated and qualified people in the workplace in order to establish whether a policy or decision was made based on the employee’s protected characteristic or for an alternative, justifiable reason.

Disparate impact, on the other hand, refers to discriminatory practices that appear to be fair on their face, but in fact, they are discriminatory. Regardless of the positive intent of the practice or absence of discriminatory content in the policy, employers are not immune to the repercussions that accompany situations in which certain protected classes are subject to a harsher, more hostile working environment due to said policies. In order to prove disparate impact, an employee does not need to show that the policy had discriminatory or malicious intent, rather that the policy simply had the effect of being discriminatory in practice.  For example, a policy that forbids employees from wearing a hijab in the workplace would fall under the category of disparate treatment because it specifically discriminates against a religion.  A policy that requires all police officers to be 5 feet 6 inches tall, on the other hand, does not discriminate against women outright, but it would have a disparate impact because it would exclude many more women than men from the application pool.

Both types of discrimination are actionable, and it is important to determine whether the discrimination falls under the category of disparate treatment or disparate impact to pursue the proper course of legal action. If you believe you have been discriminated against either as an applicant or as an employee, you should consult an employment attorney to learn your rights.