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Employment law

disparate impact / disparate treatment

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 Texas, both disparate impact and disparate treatment are recognized forms of employment discrimination under federal law. Disparate impact refers to employment practices that, while neutral on their face, disproportionately affect members of a protected class without a business necessity. For example, a standardized test used for hiring that inadvertently excludes a higher percentage of a particular minority group could be considered to have a disparate impact. On the other hand, disparate treatment involves intentional discrimination, where an employer treats some people less favorably than others because of their race, color, religion, sex, or national origin. An example would be subjecting only minority applicants to a particular skill test. Federal laws, such as Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act, prohibit both types of discrimination in Texas. These laws apply to various aspects of employment, including hiring, promotion, job assignment, termination, and compensation.

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