Disparate Treatment

What is disparate treatment?

Disparate treatment refers to discrimination that occurs when an individual or group is treated less favorably than another similarly situated individual or group, on the basis of a protected characteristic such as race, national origin, sex, religion, or disability.

Disparate treatment discrimination can take many forms, including:

• Refusing to hire or promote an individual based on their protected characteristic
• Paying an individual less because of their protected characteristic
• Harassing an individual because of their protected characteristic
• Denying an individual access to training or other opportunities based on their protected characteristic
• Treating an individual differently in terms of terms and conditions of their employment, or in providing benefits or services

It’s important to note that disparate treatment is the most common and most recognized form of discrimination under federal civil rights laws in United States. HBR’s diversity and inclusion research documents that disparate treatment is most common in informal decision-making : promotion choices, project assignments, and mentoring access : where criteria are subjective and rarely documented.

Characteristics of disparate treatment

Some characteristics of disparate treatment discrimination include:

• Intentional discrimination: This discrimination is often the result of conscious bias or prejudice on the part of the individual or organization responsible for the discrimination.
• Unequal treatment: This discrimination occurs when an individual or group is treated differently than similarly situated individuals or groups. This could manifest in different ways such as unequal pay or benefits, unequal access to training or opportunities, or unequal terms and conditions of employment.
• Protected characteristic: This discrimination is based on one or more protected characteristics such as race, national origin, sex, religion, age, and disability.
• Direct evidence: This discrimination is often proven through direct evidence such as statements or actions by the individual or organization responsible for the discrimination that demonstrate bias or prejudice.
• Discriminatory impact: This discrimination can have a wide range of negative consequences for the individuals or groups affected by the discrimination, including loss of job opportunities, economic harm, and damage to social and community cohesion.

Why is disparate treatment important?

This treatment is important for several reasons: SHRM’s employment law guidance recommends structured decision-making frameworks with documented criteria as the most effective tool for preventing disparate treatment claims.

1. Promoting equality: Disparate treatment laws and regulations help to ensure that everyone has equal access to opportunities and is treated fairly, regardless of their protected characteristics. This helps to promote equality and prevent discrimination in the workplace, society and other aspects of life.
2. Protecting individual rights: Disparate treatment laws and regulations help to protect the rights of individuals who have been subjected to discrimination. This includes the right to be free from discrimination in the workplace, in housing, and in access to goods and services.
3. Promoting diversity: Disparate treatment laws and regulations help to promote diversity by ensuring that individuals from different backgrounds and with different characteristics have equal opportunities to succeed.
4. Holding organizations accountable: Disparate treatment laws and regulations hold organizations accountable for their actions, by making them liable for discriminatory practices. This acts as a deterrent against discrimination and provides a way to hold organizations responsible if they engage in discrimination.
5. Remedies: Disparate treatment laws and regulations provide remedies for individuals or groups that have been harmed by discrimination, such as awarding damages, offering compensation, and requiring organizations to change their policies and practices to prevent further discrimination.
6. Societal impact: Discrimination harms not only the individuals who are discriminated against but also the society as a whole. Disparate treatment laws and regulations help to create fair, inclusive and just society, promotes social cohesion and prevents marginalization of certain groups.

Structured, criteria-based hiring eliminates the subjectivity that produces disparate treatment. Organizations using pre-employment assessments ensure every hire is grounded in verified skills. A data-driven hiring plan reduces mis-hire risk, while strong talent acquisition practices focused on skills-based hiring help organizations attract and retain top talent.

Frequently asked questions