Disparate Treatment and Disparate Impact
Title VII of the 1964 Civil Rights Act provides two primary theories of recovery for individuals--these are disparate treatment and disparate impact (sometimes labeled adverse impact). This section of the Civil Rights Code forbids job discrimination based on race, color, or national origin. Members of those "protected classes" cannot lawfully be denied employment opportunities merely because they are Native Americans, black, of Vietnamese ancestry, or white, for that matter (Paetzold, 2005, p. 330).
Title VII made obvious, deliberate employment discrimination illegal. It enforced a legal theory of disparate treatment. Disparate treatment exists if an employer gives less favorable treatment to employees because of their race, color, religion, sex, or national origin. For example, a retail store that refused to promote black warehouse workers to sales positions, preferring white salespeople to serve predominantly white customers, would be guilty of this kind of discrimination. Disparate treatment violates the plain meaning of Title VII.
On the other hand, disparate impact is the discrimination caused by policies that apply to everyone and seem neutral but have the effect of disadvantaging a protected group. Such policies are illegal unless strongly job-related and indispensable to conduct of the business. Basically, the intention of Title VII was to create a level playing field by prohibiting all discrimination, given the entrenched prejudices of employers.
Early disparate treatment law cases sometimes included direct evidence of this conscious hostility or intent to discriminate. Because perceivers can never know what another person actually thinks, the determination of intent required inferences arising from the other person's behavior. For example, in the early case of Slack v. Havens, (1975) four Black women claimed that they were illegally discharged because of their race when they refused to perform heavy...
References: Fickling et al. v. New York State Department of Civil Service (1995). United States District Court, Southern District of New York, 909 F. Supp. 185.
Krieger, L. H. (1995). The content of our categories: A cognitive bias approach to discrimination and equal employment opportunity. Stanford Law Review, 47, 1161-1248.
Paetzold, R. L. (2005). 14 Using Law and Psychology to Inform Our Knowledge of Discrimination. In Discrimination at Work: The Psychological and Organizational Bases, Dipboye, R. L. & Colella, A. (Eds.) (pp. 329-348). Mahwah, NJ: Lawrence Erlbaum Associates.
Slack v. Havens (1975). 522 F.2d 1091 (9th Cir. 1975).
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