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 Mexico, as in other states, employment discrimination laws prohibit both disparate treatment and disparate impact. Disparate treatment refers to intentional discrimination where an employer treats an individual or a group of individuals differently based on a protected characteristic, such as race or gender. An example of this would be requiring only applicants of a certain race to pass a specific test. Disparate impact, on the other hand, involves employment policies or practices that, while neutral on their face, disproportionately affect members of a protected group and are not job-related or necessary to the operation of the business. An example would be a cognitive ability test that, although applied to all applicants, disproportionately excludes individuals of a certain race and is not essential for job performance. Federal laws, including the Civil Rights Act of 1964 (Title VII), the Americans with Disabilities Act (ADA), and the Age Discrimination in Employment Act (ADEA), provide the framework for these protections, which are also enforced by state laws and agencies in New Mexico. Employers in New Mexico must ensure that their hiring and employment practices comply with both federal and state anti-discrimination laws to avoid liability for either disparate treatment or disparate impact discrimination.