As an employer, you try your best to keep your team happy. But sometimes issues crop up–and it can be hard to know how to handle them. One of those issues? Workplace discrimination.
Unlawful discrimination can be costly, which is why HR managers and small business owners work hard to eliminate the possibility of that happening. But how, exactly, can you avoid it? And what happens if it does come up?
In this article, we discuss one of the most common discriminatory practices–disparate treatment–and what you can do about it.
What Is Disparate Treatment?
Disparate treatment is when an employer treats an employee or job candidate differently due to the person’s race, sex, gender identity, religion, age, ethnicity, national origin, or disability. In other words, it is workplace discrimination.
Some examples of disparate treatment discrimination are:
- Using discriminatory language or gestures
- Refusing to hire someone because they are a member of a protected class
- Not providing reasonable accommodations for a disability or religious or gender needs
- Creating job descriptions for a specific race, gender, religion, or another identity
- Failing to provide the same resources or assistance to employees from a protected group that are given to other workers
- Paying staff of one protected group a different amount than another group for the same work
It might not surprise you to learn that discrimination, including sexual orientation and age discrimination, can be prosecuted under federal law.
Workers and job applicants are protected against employment discrimination under the Equal Employment Opportunity Commission (EEOC), Title VII of the Civil Rights Act of 1964, and the Americans with Disabilities Act (ADA).
While most employment laws are mandatory for businesses with more than 15 employees, it’s better to abide by them even if you only have a handful of hires. Why is that? Not only will it help create a positive culture at your office, but also discrimination cases are both common and expensive to fight.
For example, the monetary benefits distributed for race-based lawsuits alone totaled $99.3 million last year alone. That’s why it’s best to avoid all forms of discrimination.
Disparate Treatment vs. Disparate Impact
You might have heard both of these terms and wondered how, exactly, they’re different from one another. Well, you’re not alone! They both describe unfair treatment in the workplace, but they differ in a few important ways.
Generally speaking, disparate treatment is viewed as intentional discrimination, and disparate impact can be considered unintentional.
Another word for disparate impact discrimination is adverse impact; the two terms are often used interchangeably.
These examples clearly highlight the difference between the two terms:
Example 1: Employee Testing
- Disparate Impact: A restaurant owner mandates an annual drug test for all kitchen staff. Incidentally, most of the positive results come from immigrant kitchen employees.
- Disparate Treatment: A restaurant owner makes drug testing mandatory only for immigrant employees.
Example 2: Hiring
- Disparate Impact: A job description for a construction job includes height requirements. Since the mandatory height exceeds that of the average woman, not many women apply, hence fewer women are hired.
- Disparate Treatment: When hiring for a construction company, a hiring manager asks female candidates about their home life, children, and commitment to the strict timelines required to finish a project. Male candidates are not asked these questions.
Example 3: Promotions
- Disparate Impact: An enterprise company is promoting internally for a headquarter-based position, but each individual office has its own career development program. The office manager working with most African American employees has a poorly structured career path program. Thus, the employees from this office are rarely promoted internally.
- Disparate Treatment: An African American woman is up for promotion, but despite her stellar qualifications, she is passed over without any explanation.
Examples of Disparate Treatment and Impact in the Real World
In theory, this may seem pretty straightforward–but how does it play out in the real world? One of the most famous cases involves the restaurant Hooters. They have been involved in several lawsuits over the past two decades. Some were related to disparate impact, others to disparate treatment. Here are two real-life examples:
- Disparate Treatment: In 2015, a server won $250,000 in a lawsuit against Hooters for racial discrimination. Farryn Johnson alleged that she was fired for getting blonde highlights in her hair. Her manager told Farryn that African American women naturally didn’t have blond hair, and therefore, she wasn’t allowed to get highlights.
- Disparate Impact: In 1997, several men sued Hooters for refusing to hire male servers. The company eventually agreed to a settlement worth $3.75 million and created male-friendly positions. However, Hooters still follows its original hiring practices and disproportionately focuses on female applicants.
How Can an Employee Prove Discrimination?
An employee must have a prima facie case to sue for disparate treatment. This means that they must have sufficient evidence to prove intentional discrimination. They cannot rely on circumstantial evidence. An employee generally needs to show direct evidence that:
- They are a member of a protected identity.
- They were qualified for the position.
- Despite their qualifications, they were either passed over or terminated.
- The employer hired or retained someone else with the same qualifications but from a different, usually unprotected identity.
For example, imagine a company is laying off employees, but only the Hispanic employees are let go across all departments. Terminated employees would have grounds to sue for intentional discrimination because the only common factor among the layoffs was ethnicity.
Employers are required to demonstrate non-discriminatory reasons for their decisions. To prove that the company wasn’t discriminating against a specific group, they would need to show:
- A history of hiring and retaining Hispanic employees
- A clearly stated reason for laying off each employee, such as low job performance or removing a redundant role
Avoiding Discrimination in the Workplace
So how can you protect your company–and your employees–from disparate treatment? The best way to do that is to standardize your hiring, firing, disciplinary, and professional development practices. Also, make sure that the standard is applied to everyone equally.
For example, all employees should be expected to complete the same assessments, attend the same anti-discrimination training, and be given equal opportunity in the workplace. In other words, employees should be hired, trained, and promoted according to their performance or desire to improve, not their gender, race, nationality, or other identity.
Take these steps to reduce the likelihood of a disparate treatment claim in the workplace:
- Map out clear policies for each stage in the employee life cycle, such as including diverse candidates in the candidate pool.
- Update your employment practice policies regularly.
- Do an analysis of your current population and consider if the diversity of your team is reflective of the industry and if not, look for improvement opportunities.
- Review your policies and practices with a legal team or HR advisory firm.
- Foster an inclusive environment in the workplace.
- Hold annual inclusion training to help managers understand legal protections and consequences of intentional and unintentional discrimination.
- Include anti-discrimination training in your onboarding program.
- Get employee feedback on current workplace policies and practices.
- Conduct onboarding and exit interviews that address feelings of inclusion.
- Actively hire and promote diverse talent to leadership positions.
The good news is that technology can help out with this too. For example, when your payroll is digitized, your HR team can easily evaluate salaries, benefits, and other important factors–and look for any discrepancies. Need help doing that? Hourly is a fully digital payroll and workers’ comp platform that allows you to see who’s working and how much they’re earning in real-time—and pay your team with one click.
Creating a Healthier Workplace
Taking the initiative to spot and remove disparate treatment from the workplace can prevent expensive lawsuits. But it can also foster a healthier, more productive workplace. Disparate treatment is usually easy to spot, but disparate impact can take more effort to find. Either way, dealing with discrimination when you see it is important, so employees feel comfortable and can focus on their work.
Now that you know all there is to know about disparate treatment, what’s next? Get all your company policies down on paper–and make sure those standards are applied to everyone equally.
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