Disparate Impact/Disparate Treatment Katie Boone

 Unintentional discrimination  Involves employment practices which look neutral but negatively affect protected classes  According to Byars & Rue (2006)  Looks at all employment practices – hiring, promoting, training, termination, raises and benefits  According to Bennett-Alexander & Hartman (2009)

 Disparate impact is not expressly stated in Title VII  EEOC uses the 4/5 rule – if the minority performs at less than 80% of what the majority class does, then there is a disparate impact on the minority group  Loophole – prove the practice is a legitimate business necessity  According to Bennett-Alexander & Hartman (2009)

 Intentional discrimination  Involves employment practices or policies that clearly discriminate  Is openly discriminatory or “discriminatory on its face” (Bennett-Alexander & Hartman, 2006)  Variance from the normal – the employee can prove they were treated differently

 Employee must prove 4 things: 1) They are part of a protected class 2) Applied & was qualified for an open position 3) Was rejected for said position and the position then remained open 4) Employer keeps looking for qualified applicants – with the same qualifications of the rejected candidate  Can be rebutted by proving a legitimate reason for the choice.

 Employees lodge the complaint with the EEOC  Must be lodged within 180 days of the event  EEOC will notify the company  Mediation will be offered if the charge is appropriate  If mediation is not an option/unsuccessful, the EEOC will launch an investigation  EEOC will determine Reasonable Cause or No Reasonable Cause

 If the EEOC cannot make a determination, there are other steps  EEOC will file in the Federal Civil Court for judicial review  Remedies may be ordered here, including back pay to the employee among other things  Jury trials may be sought  In the case of No-Cause rulings, the employee may still file a civil suit

 Prove there was a legitimate reason for a potential disparate treatment case  BFOQ – Bona Fide Occupational Qualification  Business necessity  Employee is falsifying information, or presenting untrue information

 Use equal and fair employment practices  If you question it, don’t do it  Maintain proper paper trails  Applications/resumes  Performance reviews/appraisals  Training documentation  Maintain current appropriate job descriptions  Update job descriptions as they change/alter  Make employees aware of their job description

 Treat employees consistently  Treat similar situations the same – don’t treat them differently because you like one employee more than another  Maintain updated handbooks  Utilize an arbitration program  Create an environment where employees want to come to you first  Create a committee to hear potential claims  Often just airing irritations reduces them

 Disparate treatment and disparate impact are valid concerns  The employee only has to go to the EEOC to file a claim  There are legitimate reasons for certain situations  There are defenses available  Best option – be proactive! Prevent reasons for claims

 Byars, L. L., & Rue, L. W. (2006). Human resource management. New York: McGraw-Hill.  Bennett-Alexander, D. D., & Hartman, L. P. (2009). Employment law for business. New York: McGraw-Hill.