VII prevents disparate treatment discrimination. Disparate treatment is when an employer intentionally discriminates against a member of a protected class. This can be during the hiring process, the placement process, the promotion process, and so forth. (HR-Guide. com, 2001).
Examining an example can be useful in understanding disparate treatment. Two workers – say Jack and Jill – work at the same company. On Monday, both employees are absent from work. When they come to work on Tuesday, the boss fires only Jill, but not Jack. If the reason the boss only fired Jill is because she is a female, then this constitutes an illegal practice of disparate treatment. This would also be the case if Jill was fired for being black, Chinese, handicapped, old, and so forth. However, if the boss only fired Jill because she had a much worse attendance record than Jack (or anyone else at the company), this would be acceptable. (Runkel, 2008).
Disparate impact discrimination is also prohibited by Title VII. Disparate impact happens when an employer does something that would not appear to be discriminatory yet has a discriminatory affect. It is important to understand that disparate impact does not necessarily have to be intentional on the part of the employer – although sometimes it is. (HR-Guide. com, 2001).
There are many examples that can be used to illustrate disparate impact. One example is an employer that will only hire janitors who are high school graduates. This understandable method of employment may actually impact blacks or certain racial groups more than others, because those certain groups are statistically less likely to have graduated from high school. (Runkel, 2008). Another example may possibly involve employers drug testing employees’ hair strands prior to hiring them. Evidence exists suggesting that black hair may retain traces of drugs longer than lighter-colored hair, which means that this practice would cause groups of people with black hair (African Americans, Asians, etc.) to be less likely to be hired. (Discriminations, 2005).
Because cases of disparate impact typically do not involve intentional discrimination, it is interesting to note what happens when an employee accuses a company of this sort of practice. If an accusation of disparate impact is made, and a court finds that the practice does in fact have a negative impact on a protected group of people, then the company is required to prove that their practice ” is job related for the position in question and consistent with business necessity.” (Runkel, 2008). Should a company be unable to prove the necessity of their practice, then they have unlawfully performed disparate impact discrimination, and they will be reprimanded.
Disparate treatment and disparate impact, then, both protected by Title VII, are obviously very different. While disparate treatment involves the intentional discrimination of a certain protected group, disparate impact entails non-discriminatory practices that have discriminatory effects against certain protected groups. In disparate treatment cases, the plaintiff must prove that the employer intended to discriminate against them based on one of the protected groups they belong to. In disparate impact cases, however, the employer does not have to be proven to have been intentionally discriminating – instead, the plaintiff must prove that the employer’s discriminatory practice is irrelevant to the job.
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[Anonymous]. (2005). ” Disparate Impact Drug Testing” Discriminations. Retrieved online 5 December 2008 from http://www. discriminations. us/2002/06/disparate_impact_drug_testing. html.
HR-Guide. com. (2001). ” EEO: Disparate Impact” and ” EEO: Disparate Treatment.” HR Guide to the Internet. Retrieved online 5 December 2008 from http://www. hr-guide. com/data/G701. htm.
Runkel, R. (2008). ” Disparate Treatment #15″ and ” Disparate Impact #20.” Law Memo, Inc. Retrieved online 5 December 2008 from http://www. lawmemo. com/101/2005/12/disparate_treat_1. html.