Disparate Treatment and Disparate Impact

Disparate treatment and disparate impact cases involve actions on the part of an employer that a plaintiff worker claims are based on the worker’s race, gender, color, national origin, religion, disability, or age. Determining damages in these cases should follow the same practices as those used in tort, sexual harassment, or ADA (Americans with Disabilities Act, 1990) cases, with special focus on the employee’s work history.

In civil rights cases, forensic psychologists’ concern is most often focused on emotional damages in lawsuits brought in relation to claims of sexual harassment or work environments made hostile by racial prejudice or sexual bias. This research paper, however, focuses on how forensic psychologists may function in cases involving an employer’s work policies that affect individuals of a particular class. That is, these are cases involving the psychological impact of decisions that employers make about hiring or firing employees or setting the conditions, terms, compensation, or privileges that employees enjoy. For these decisions to trigger a lawsuit, they must have differential effects on individuals of distinct protected classes. The policy or decision must place one group at a relative advantage or disadvantage as compared with the other groups. This research paper first provides a context for understanding how and why these issues may be brought to court. Next, it considers disparate treatment and disparate impact as patterns of employer activities. The entry concludes with a discussion of evaluation issues for forensic psychologists in these cases.

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Historical and Legal Context

Dating back to the Reconstruction period immediately following the Civil War, the Fourteenth Amendment to the U.S. Constitution provided for due process and equal protection under the law for all individuals. Although this amendment was intended to provide civil rights protection to African Americans, a series of subsequent Supreme Court decisions prevented this amendment from providing substantive change in civil rights protection for people of color.

It was not until the passage of the Civil Rights Act of 1964 that race and color, along with national origin, sex, and religion, became truly protected classes. Although other sections of the act provide for civil rights protection in arenas such as voting and public accommodations, Title VII applies to employment and forbids employers having more than 15 employees from discriminating on the basis of race, color, national origin, religion, or sex. The relevant portion of the act reads as follows:

Sec. 2000e-2. Unlawful employment practices (a) Employer practices

It shall be an unlawful employment practice for an employer-

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or,

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.

Title VII prohibits retaliation against an employee for engaging in protected conduct, such as filing a complaint with the Equal Employment Opportunities Commission or a lawsuit. It also provides for protection against discrimination. This protection is best conceptualized as a conjunction between two things: (1) membership of the plaintiff in a protected class, as indicated by that person’s race, color, sex, national origin, or religion, and (2) actions of the employer to hire, fire, or alter the conditions, terms, compensation, or privileges of the worker’s employment. That is, discrimination occurs when the employer does something to a worker because the employee is, for example, a woman, an African American, a Sikh, or of Mauritanian ethnicity.

Other federal laws, including the Age Discrimination in Employment Act of 1967 (ADEA) (8 U.S.C. § 1324) and the ADA (42 U.S.C. § 12101) include similar provisions. These laws provide protection against discrimination based on age and disability, respectively.

Disparate Treatment

An employer may make decisions that directly disadvantage individuals from a particular protected class. This is intentional discrimination based on the employer’s belief, perhaps based on prejudice, that one group of workers will not perform well in a particular job. For example, for many years, employers would not consider women for many hazardous or physically arduous tasks, such as firefighting, police work, or working as roustabouts on oil rigs. People of color were not considered by some employers to embody the “front-office look,” which would allow them to work as receptionists or in public relations jobs. In these set-tings, employees possessing particular characteristics were not hired or promoted into particular jobs.

In disparate treatment cases, the plaintiff must establish two elements: (1) that the employee has suffered adverse action by the employer in the form of being fired, not being hired, or not being promoted and (2) a similarly situated employee not in that class was treated more favorably. An alternative legal theory may be proven by evidence indicating employer conduct revealing bias against employees of a particular class. For example, if an employer used a derogatory epithet in relation to employees of a particular race, a presumption of disparate treatment may be made.

However, employers have an opportunity to prove that the employment actions were decided on a legitimate, nondiscriminatory basis. That is, there may be a valid reason for individuals of a particular class to be excluded from a job. For example, religious organizations may exclude individuals not of that faith from a particular job. People of one gender may not be chosen for a specific job, such as bathroom attendant or undergarment fitter.

In situations in which the employer is claiming that there is a legitimate reason for excluding a particular group of employees from a job, the employee filing suit must prove that the supposed legitimate basis offered by the employer is in fact a pretext for discrimination. That is, although the employer claims a real-life justification for excluding employees from a position, the real reason is that the excluded employees are, for example, male, Jewish, or Korean.

Disparate Impact

In other situations, employers may not clearly intend to discriminate against a class of employees. Employees may be placed at a disadvantage because of an employer policy that, on the face of it, should have no differential effect on individuals in particular groups. For example, an employer may have a minimum height requirement for employees working in an auto parts depot. Although this requirement would be considered facially neutral, it would eliminate more women than men from consideration for the job because women are typically shorter than men. In another example, a position may require individuals to work on Friday nights. Again, although this job requirement may appear to be fair, it would disadvantage observant Jews and would constitute discrimination on the basis of religion. Disparate impact claims have been brought in cases in which written tests, such as the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), or subjective interviews were used as a basis for employee selection.

Employers may defend these cases by claiming “business necessity.” That is, the employer may claim that the practice is “job-related for the position in question and consistent with business necessity” (42 U.S.C. § 2000e-2(k)(1)(A)(i)). Courts have been friendly to these defenses, especially in cases involving the ADEA, because in age discrimination cases, salary level often correlates highly with the age of employees.

Psychological Consultation

In cases of disparate treatment or disparate impact, the effects of job actions resulting from the alleged discrimination are the focus of the forensic psychologist’s attention. For example, if an employee is fired from a job because of disparate treatment, the psychologist would focus on the emotional impact of forcible unemployment. Research indicates that being fired may have an impact beyond the economic implications. One’s job is often considered the same as one’s identity, and a fired worker may feel as though not only a source of income has been lost but also a source of self-esteem. In losing the job, the employee may suffer the loss of a social network, which may have been based on relationships with coworkers. Work provides structure for time, and the loss of that structure may leave a worker with little to do with his or her day. Unemployment brings with it a host of changes on the home front, some-times necessitating the spouse to go to work, or changes in the family dynamics because of the loss of one parent’s bread-winning role. Similar changes may be expected in situations involving failure to promote or failure to hire.

In all these cases, the psychologist may employ evaluation techniques commonly used in evaluations of individuals who have suffered other losses. A review of the plaintiff’s vocational history is particularly important, along with an assessment of the place of the job in the person’s life. Collateral interviews are especially important in these evaluations because family members and friends may provide information concerning changes in self-esteem and lifestyle that may not be obvious to the plaintiff.


  1. Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e-2. Retrieved June 18, 2007, fromhttp://www.eeoc.gov/policy/vii.html
  2. Foote, W. E. (2003). Forensic evaluation in Americans with Disabilities Act cases. In I. B. Weiner (Series Ed.) & A. D. Goldstein (Vol. Ed.), Handbook of Psychology: Vol. 11. Forensic Psychology (pp. 279-300). New York: Wiley.
  3. Foote, W. E., & Goodman-Delahunty, J. (2005). Evaluating sexual harassment: Psychological, social, and legal considerations in forensic examinations. Washington, DC: American Psychological Association Press.
  4. Parry, J. W. (1996). Regulation, litigation and dispute resolution under the Americans with Disabilities Act: A practitioner’s guide to implementation. Washington, DC: American Bar Association Commission on Mental and Physical Disability Law.