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 South Dakota, as in all states, employment discrimination is governed by both federal and state laws. Disparate impact refers to policies or practices that, while seemingly neutral, disproportionately affect members of a protected class, such as race or gender, without the employer intending to discriminate. Disparate treatment, on the other hand, involves intentional discrimination where an employer treats an individual or group differently based on their protected characteristics. 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), prohibit both disparate impact and disparate treatment discrimination. These laws apply to employers in South Dakota and protect against discrimination based on race, color, sex, sexual orientation, gender identity, national origin, religion, age, military status, equal pay, pregnancy, disability, or genetic information. South Dakota state law also prohibits employment discrimination and is enforced by the South Dakota Division of Human Rights. Employers must ensure that their hiring, promotion, and other employment practices comply with these regulations to avoid liability for both types of discrimination.