Disparate impact and disparate treatment refer to discriminatory employment practices. The distinction between these two types of discriminatory practices often focuses on the employer’s intent.

Disparate impact is often referred to as unintentional discrimination and disparate treatment is often referred to as intentional discrimination. The terms adverse impact and adverse treatment are sometimes used in place of disparate impact and disparate treatment.

Disparate impact occurs when policies, practices, rules, or other processes that appear to be neutral result in a disproportionate impact on a protected group of persons.

For example, testing all applicants and using results from that test that will unintentionally eliminate certain minority applicants disproportionately is disparate impact. And testing a particular skill of only certain minority applicants is disparate treatment.

Federal laws prohibit job discrimination based on race, color, sex, sexual orientation, gender identity or expression, national origin, religion, age, military status, equal pay, pregnancy, disability, or genetic information and prohibit both disparate treatment and disparate impact discrimination.


In New Jersey, both disparate impact and disparate treatment are recognized forms of employment discrimination that are prohibited under federal laws such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act (ADEA), the Americans with Disabilities Act (ADA), and the New Jersey Law Against Discrimination (NJLAD). Disparate treatment refers to intentional discrimination where an employer treats an individual less favorably because of their membership in a protected class. Disparate impact, on the other hand, involves employment practices that, while neutral on their face, disproportionately affect members of a protected class and are not job-related or necessary to the operation of the business. New Jersey courts will analyze the intent behind the employer's actions in cases of disparate treatment, while in disparate impact cases, the focus is on the consequences of the employment practices rather than the employer's intent. Employers in New Jersey must ensure that their policies and practices do not unlawfully discriminate against employees or applicants based on protected characteristics.