Title VII of the Civil Rights Act of 1964 prohibits discrimination against any person based on race, color, national origin, pregnancy, sexual orientation, gender identity, or religion. Both disparate treatment and disparate impact fall under this ruling; however, the two are treated as different entities within the legal system. The difference between them is often difficult to understand. Though they appear similar, they can be differentiated by presence or lack of direct intent. Disparate treatment is intentional, while disparate impact is the unintentional effect of an otherwise neutral policy.
Disparate treatment is an action or condition put in place deliberately to adversely affect a minority group. It can be called “intentional discrimination” (King and Hemenway, 2020). An example would be a university campus event, which all students are invited to. If non-binary students had to pass a test before they were allowed to participate, it would be a case of disparate treatment, as uneven conditions were set up to bar them from taking part. As the test was clearly aimed at members of a minority population in particular, there can be little legal argument as to the intent of the person enforcing this rule. Another example would be requiring extra medical tests for new employees of a certain skin color, or disallowing pregnant women from accessing certain areas of a workplace. All of these examples intentionally single out a Under U.S. law, all cases of disparate treatment are seen as discrimination, which is prohibited. If intent is proven, all cases of disparate treatment are unlawful by their nature.
Disparate impact, however, is not as easy to make a ruling on as disparate treatment. It arises when a neutral policy has a disproportionate negative effect on a minority population. An example would be a business setting minimum height criteria for employment. Such criteria adversely affect certain races that have shorter average heights, as well as women, who generally tend to be shorter than men. Despite there being no direct intent to cause harm, disparate impact is described as “discriminatory consequences” (King and Hemenway, 2020) and can be seen as a violation of Title VII in some cases, such as the Ricci v. DeStefano case. In that case, white employees that earned a promotion based on a written exam were denied that promotion due to none of the African-American employees qualifying. The Court ruled that this was a case of disparate impact, where the employees that should have been promoted were unjustly affected based on the fact that they were not African-American. In such cases, the lack of intent does not matter, but rather the objective outcome is considered by the court.
If intent to discriminate can be proven by the defendant, it is considered disparate treatment. If no intent can be proven, but adverse impact has been had based on belonging to a minority group, it is considered disparate impact and must be evaluated to see whether the policy causing the impact is necessary for the operation of the business or entity enacting it. The key difference between the two is therefore intent, however this does not mean that there not being intent to discriminate prevents something from falling under the category of disparate impact. Each case of disparate impact must undergo heavy evaluation to determine whether the policy that has this impact is necessary, regardless of whether the enactor meant to adversely affect the minority or not.
Reference
King, A., & Hemenway, A. (2020). Blurred Lines: Disparate Impact and Disparate Treatment Challenges to Subjective Decisions-The Case of Reductions in Force. Wm. & Mary Bus. L. Rev., 12, 433.