What Is Disparate Treatment?

Disparate treatment is when an employer treats one or more employees differently, without good cause based on the details of the role. For example, it is fair to consider an employee’s physical strength for a job involving frequent heavy lifting, but citing strength as a factor for an office job is spurious at best.

Disparate treatment is an intentional act by companies, though the company may not always be fully aware of the results of their choice.

We’ll get to more disparate treatment examples later, but for now, consider a construction business that emphasizes social gatherings at a bar after a day’s work. If an employee doesn’t drink for religious reasons or needs to attend church at night, they might be disadvantaged if their lack of presence at these events leads to being passed over for promotions.

What Is The Difference Between Disparate Treatment and Disparate Impact?

Disparate treatment is intentional, while disparate impact is unintentional.

When a company imposes disparate treatment, it’s usually because the owners (or possibly some directors or managers, in larger companies) have a specific preference for running the business that doesn’t include treating all employees fairly. For example, the company may only want to hire younger workers because that can lower salaries.

Disparate impact is often the result of a company failing to consider all of the ramifications of its decisions. This usually has a foundation in neutral actions. For example, a company may allocate a certain amount of money per day, per employee, for use while traveling.

However, employees sent to more-expensive areas may have a harder time finding food or accommodations within their budget. Dealing with matters like that could affect their performance, and therefore their reviews and possibility for promotions, compared to employees who got excess funds for travel and less stress as a result.

In other words, treating employees the same can have a disparate effect on them. It is HR’s role to consider problems like these and look for ways to mitigate them.

Why Is It Important To Avoid Disparate Treatment In The Workplace?

There are several reasons that companies should avoid disparate treatment in the workplace.

First, disparate treatment is often illegal, especially if it affects someone in a protected class. This is most apparent under Title VII of the Civil Rights Act, which defines various protected groups in the workplace. Legal issues, by themselves, are sufficient reason to avoid disparate treatment.

Aside from the legal concerns, disparate treatment is also demoralizing to employees and will often result in poorer performance from those affected, reducing profits for the company. If some employees are favored for reasons other employees consider unfair, they probably won’t put in as much effort as they otherwise could.

In short, there are legal, fiduciary, and ethical reasons to avoid disparate treatment in the workplace.

What Are Some Common Methods Employers Use To Avoid Disparate Treatment?

The most common strategy for avoiding disparate treatment is actively trying to treat employees the same.

In practice, this means not asking things of one employee without asking them of others, too. For example, an employer shouldn’t demand drug tests from African-American applicants while not asking for them from anyone else.

Good employers also screen recruitment processes to determine whether a job requirement is necessary or discriminatory. Hiring managers are often bad at this, assuming that unless something explicitly affects a protected category, it’s fine. This is not true. As mentioned, something can look fair on the surface but still create discrimination.

Finally, employers may solicit opinions from employees before implementing new policies. Some companies want to implement the new policy no matter what and will fire anyone who objects to it, but this is problematic because it can expose the company to legal liability. If an employee can prove that they were fired because of disparate impact, they may have a good case.

What Are Some Signs That An Employer May Be Engaging In Disparate Treatment?

Here are some common signs of disparate treatment in a workplace:

• Some employees have significantly more duties than others with similar job titles and experience
• Some groups are favored more than others for raises, promotions, or hiring
• Some types of employees get fired for less cause than other groups

What Are The Consequences Of Disparate Treatment In The Workplace?

There are several major consequences of disparate treatment in the workplace, and it is HR’s job to help the company avoid these consequences.

The first consequence is lower company-wide performance. Disparate treatment usually involves favoring some employees over others regardless of the merits of their work. This means more managers and executives with less skill and experience, reducing the company’s performance and productivity. Disparate treatment has a real financial cost to businesses.

Second, there is significant legal exposure for any company engaging in disparate treatment. Protected employment classes are the most obvious form of this, but even employees who don’t fall into any of those categories could bring a lawsuit that affects the company. If they can prove the disparate treatment, that gets expensive.

Third, disparate impact can affect hirings. Employees who experience this will often talk about it and share their experiences. This can drive highly-qualified employees away from the company, leading back to poorer performance and lower profits.

Any of these reasons would be enough in isolation, but together they make it clear that businesses both can and should actively avoid engaging in disparate treatment.

How Can Employees Protect Themselves From Disparate Treatment?

There are several ways that employees can protect themselves from disparate treatment.

First, they should be able to come to you and discuss their concerns, and you should listen. HR’s job is to protect the company, and disparate treatment ultimately harms the company. If employees do not feel comfortable talking to you about this, it may go on much longer and do more harm.

Second, employees can document any situation they believe imposes disparate treatment. With enough evidence, a qualified individual can help determine if a situation is discrimination or something that does not rise to that level.

Third, employees can contact organizations like a state’s Department of Labor. Some allegations of disparate treatment may trigger government investigations of the company. As an HR employee, avoiding this is one of your goals, so you should strive to prevent any situation in which a worker feels it’s necessary to seek outside help.

Disparate Treatment Examples

Here are some disparate treatment examples and how they affect businesses.

Failure To Hire Due To Naming Conventions

Many companies prefer hiring employees whose names sound “white” enough, which in practice means English and broadly northern European.

The problem here is assuming that names common to non-Hispanic Caucasian individuals are the “default” and that any other sort of name is “foreign”. Failing to hire someone because of suspicion about their name indicates a company that is more interested in ideas than evidence (and those ideas aren’t exactly based in fact, either).

Bias over names can be difficult to overcome, but one technique for avoiding it is making candidate names anonymous. For example, instead of using names, a hiring team might discuss Candidates A, B, and C.

Failure To Promote

Many companies practice disparate treatment against certain employees when considering them for promotions.

For example, some businesses pass over well-qualified female employees and focus on promoting less-experienced male colleagues. The company may claim that the men have better leadership skills, but a significant part of that is societal expectations where women who act like leaders are called too aggressive, while men who act the same are praised.

Failing to promote the best people for the job can have a significant impact on a company’s long-term performance. This is also an area ripe for lawsuits, especially if the person promoted is less-qualified for the role.

HR can help avoid this problem by considering candidates holistically and making recommendations based on actual merit and performance.

Wrongful Termination

In this context, wrongful termination is an employee who is fired based on disparate treatment when someone else wasn’t.

For example, let’s say that an employee has an office at one end of a building. Their manager sends an email asking them to come in for a sudden group meeting, but that employee is a few minutes late because they had to walk across the whole building when everyone else was closer. They’re fired for being late.

While this may sound ridiculous, it’s the kind of behavior that many companies display when they want to get rid of someone without valid cause. The average wrongful termination lawsuit costs a company tens of thousands of dollars, and that adds up fast if a business does it regularly.

HR can mitigate this by ensuring that employees are only fired for good cause and that the company does not try to make excuses for firing people.

This is not as simple as only firing the lowest-performing employees. If a former employee can provide that they were put into circumstances where they couldn’t perform as well as others, and got fired for that, they may have a legitimate lawsuit on their hands. HR should always look at things holistically, rather than only considering the surface actions and reasons.

Lack of Clear Policies

Failure to write down or articulate policies within the company can lead to disparate treatment. It can also be harder to prove discrimination.

The easiest way to avoid this is by clearly writing down the expectations for employees, including the criteria for deciding whether to promote someone or give them a raise. These policies should identify what factors go into making decisions and how the company will measure them.

Try to avoid any subjective factors in these areas. Similarly, make sure the goals are fair, realistic, and achievable. If the company knowingly sets goals that are impossible for any employee to hit, then uses that as a reason to deny raises, that’s disparate treatment.