Disparate Impact & Disparate Treatment

DISPARATE IMPACT & DISPARATE TREATMENT

EMPLOYMENT LAW 434

There are two types of employment discrimination claims, disparate impact or disparate treatment. In a disparate impact claim there need not be proof of intentional discrimination, but rather proof that the employer utilizes employment practices that are facially neutral in their treatment of different groups but in fact fall more harshly on one group than another and cannot be justified by business necessity. In a disparate treatment claim, the worker seeks to prove the employer's discriminatory motive (HR Guide, 2004).

DISPARATE IMPACT

A black employee at Fort Worth Bank & Trust was turned down four times for a promotion to a supervisory position. This was in favor of white applicants. Fort Worth Bank used several things in accessing her candidacy. In assessing her candidacy, the bank used interviews, rating scales, and experience requirements which had not been subjected to validation procedures (Watson v. Fort Worth Bank, APA Website, 1988).

After she was turned down for the fourth time, the employee brought a claim under Title VII of the 1964 Civil Rights Act. The Fort Worth Bank & Trust claimed that interviews and rating scales should not be subjected to the validation procedures required in disparate impact cases, i.e., that it should not be required to show that the criteria are job-related. The district court agreed, disallowing the plaintiff's claim under the disparate impact theory of Title VII. The court then analyzed the employees claim under the disparate treatment theory, which requires a plaintiff to show intentional discrimination of a protected class. The court ruled that, while the employee had made a case of discrimination, the bank had a legitimate nondiscriminatory basis for not promoting her. The Fifth Circuit up held the decision from the lower court. Due to the question of whether disparate impact analysis could be used with subjective devices had been answered differently by a number of federal appeals courts, the Supreme Court granted certiorari (Watson v. Fort Worth Bank, APA Website, 1988).

The US Supreme Court vacated the Fifth Circuit's decision and remanded the case (Watson v. Fort Worth Bank, APA Website, 1988).

DISPARATE TREATMENT

Mr. Hernandez was employed by Hughes Missile Systems for 25 years. In 1991, the company found that Mr. Hernadez's behavior at work suggested that he was under the influence of drugs or alcohol. When he tested positive for cocaine, and later admitted using cocaine and drinking beer the night before the test, he was forced to resign pursuant to company workplace policies. Two years later, after rehabilitation with the assistance of Alcoholics Anonymous, Hernandez applied for rehire with Raytheon, which had then acquired the Hughes Corporation. Raytheon reviewed his personnel file, and refused to rehire him because of company policy against rehiring employees who had been terminated for workplace misconduct (Raytheon Company v. Hernandez,

Stetson Law Site, 2003).

Mr. Hernandez filed a complaint with the EEOC, which issued a right to sue letter, saying that they believed that he had been turned down due to a disability. In the prior litigation, Hernandez claimed, more specifically, that Raytheon rejected his application because of his record of drug addiction, and/or because he was regarded as being a drug addict. (Raytheon Company v. Hernandez,