August 13, 2020
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Teachable moments – Disparate treatment

By: Cassandra May Albaugh
July 31, 2020

This week’s article focuses on the concept of Disparate Treatment, sometimes also known as Adverse or Disparate Impact. The concept is useful in the development of Affirmative Action to identify barriers to equal opportunity. It is also a judicial theory developed in the United States that allows challenges to employment or educational practices that are nondiscriminatory on their face but have a disproportionately negative effect on members of legally protected groups. 

Let’s first look at this concept in an employment context. This is when an employer treats some people less favorably than others because of their race, color, religion, gender, national origin and more recently their sexual orientation, gender Identity, age, or being differently abled. Employee A is a person of color or a woman. They arrive 15 minutes late for work. Their supervisor writes them up on their first late arrival. Yet employee B who also was late by a similar amount of time, gets just a verbal warning. This is disparate treatment. Two employees, with similar behaviors, are treated differently. The employer’s policy may be nondiscriminatory in language such as “Employees arriving late for work are subject to disciplinary action.” Yet the unequal application of that policy may be discriminatory.

A single incident doesn’t prove intent, there may be other factors involved. That’s where statistical review and data collection comes in. If employee A files a discrimination complaint with HR, they must articulate a reason that their race or gender was the “sole” factor as a basis of their complaint. But if HR or other investigating agencies such as the Equal Employment Opportunity Commission, finds a trend of disparate treatment from this supervisor or this employer, the burden of proof shifts from the individual employee to the employer. They then must explain why this treatment wasn’t discriminatory. If the employer is unable to do so, employee A will have their complaint substantiated and the employer will have to take action to make the employee whole.

Statistical review and data collection play a significant role in identifying barriers to equal opportunity and taking affirmative action to remove them. Examples abound. Discipline of minority students in an educational setting is but one. Another would be treatment by police authorities. Standards for obtaining credit, renting, or buying a house, purchasing a car or major appliance are others. If applied unequally, it strongly indicates discrimination, whether intentional or not.

I’ll use a personal example to illustrate. Growing up, as a teenager I once participated in a shoplifting prank. Three of us thought it would be funny to go to a store where our mutual friend was working. The goal was to see who could walk out of the shop with the most expensive item. It was wrong obviously. We should have known better. We were all white. If caught, we would have been taken home to our parents for discipline, be made to pay for what we took and perhaps do some yard work or community services as discipline. But my black or brown peer, if caught, statistically would be taken down to the station, booked and thus have a juvenile record. That record may impact on their ability to get a job, enlist in the service, or obtain credit later. My more lenient result would have no impact on those things later in my life.

So, when looking for barriers to equal opportunity, organizations should be aware of disparate impacts on folks who have been discriminated against based on their race, gender, etc. They should look at their standards, policies, and procedures to not only ensure they are nondiscriminatory on their face, but also not unintentionally discriminating. It’s easy to say we’re an Equal Employment Opportunity organization. It’s harder to ensure that you are. First you must be aware of hidden barriers, proactive in investigating complaints, willing to use statistics to identify potential barriers and act to remove them. 

The thoughts and opinions expressed in this article are based on the author’s learning and experience. That includes serving as a Military Civil Rights Counselor/Facilitator, Senior Coast Guard Instructor and Liaison Officer at the Department of Defense’s Equal Opportunity Management Institute, Past Co-Chair International Society for Performance Improvement (ISPI) Diversity Committee, and Civil Rights, Assistant Civil Rights or Human Relations Committee assignments over a twenty-eight-year active duty military career. The views expressed by the author are their own and not the views of the Community Voice, the U.S. Coast Guard, or any other organizations the author references.