What is Disparate Treatment?

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  • Written By: Mary McMahon
  • Edited By: Kristen Osborne
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  • Last Modified Date: 28 May 2020
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Disparate treatment is a concept in employment law in the United States regarding situations where people are treated differently on the basis of membership in a particular class. It is considered a civil rights violation when it involves unequal treatment on the basis of race, disability, sex, creed, age, or ethnicity. This topic is discussed in the Civil Rights Act, a key piece of antidiscrimination legislation in the United States passed in 1964 to address concerns about inequality in settings like school, housing, and the workplace.

In disparate treatment, people are provided with unfavorable treatment like lack of access to employment or benefits on the basis of their membership in a protected class. Employers who refuse to hire disabled workers, for example, would be engaging in disparate treatment and could be liable for legal penalties. Employees may be able to prove discrimination directly, pointing to discriminatory statements or policies, or by inference.

The law specifically provides protection for cases where employers use affirmative action policies or can document a clear need for disparate treatment in favor of people in a typically protected class. Employees with programs to increase employment of people of color, for example, are technically using disparate treatment in their hiring practices, but it is considered legal as part of an affirmative action plan. Likewise, a company with a specific need for people from a specific protected class can hire these people preferentially, as long as the need is clearly documented.

People can sue workplaces for disparate treatment if they are able to prove directly or through inference that a company is making discriminatory decisions. Companies only offering benefits to Christian employees, for example, could find themselves sued by people who are not Christian who want access to those benefits. Employers are generally very careful to avoid favoritism and unfair policies with the goal of giving all employees equal and fair treatment and avoiding legal liability for discrimination.

This should not be confused with disparate impact, a related but different legal issue. This concept involves ostensibly neutral policies, like an education requirement, that tend to have a negative effect on people in protected classes as a result of social inequalities. For example, a hospital requiring that all doctors have medical degrees and board certification is not exercising discrimination, but it may hire fewer women and people of color because these individuals are less likely to be able to go to medical school.

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