An HR Guide to Preventing Disparate Treatment In the Workplace

What is Disparate Treatment?

Disparate treatment is when an employee is treated unequally or differently than their peers based on any kind of protected characteristic. This can include race, religion, ethnicity, gender, sexual orientation, age, disability status, or another protected class.

Once certain employees are given different opportunities or privileges than others because of these characteristics, it can qualify as illegal disparate treatment. While unfair or hostile working conditions should always try to be avoided because of their impacts on company culture and employee wellbeing, you also risk major legal consequences if discriminatory practices occur.

Disparate Treatment vs. Disparate Impact

It’s important to distinguish disparate treatment from disparate impact, since both can occur in the workplace. Here's what you need to know about each:

• Disparate impact occurs when a workplace policy negatively impacts a protected group, even if the policy seems neutral. For example, requiring a fitness test could disproportionately impact older employees.
• Disparate treatment refers to a type of intentional discrimination where members of a protected class are knowingly treated differently due to their differences. If a company excluded older candidates from consideration for a job opening, they would be treating those candidates differently because of their age.

Disparate Treatment Examples

It’s the unfortunate reality that disparate treatment, ranging from mild to severe, can show up in any workplace setting. This type of discrimination can target a wide range of employee identities, including race, gender, age, disability, and nationality — all of which harm staffers and limit the company’s potential. 

Here are several examples of what disparate treatment can look like in a variety of professional interactions to help you spot this if you ever encounter it. 

Unequal Compensation and Benefits

Example 1: Despite similar qualifications and job responsibilities, an employer consistently pays its female employees less than their male counterparts.

Example 2: An employer gives Catholic employees extra time off for religious holidays but denies its Jewish or Muslim employees the same benefit.

Discriminatory Hiring Practices

Example 1: An organization routinely rejects job applications bearing names that don't sound white, even if the applicants possess the necessary qualifications, while regularly considering and hiring individuals with white-sounding names. 

Example 2: Regardless of their education and experience, an employer refuses to hire job applicants who he believes might identify as members of the LGBTQIA+ community.

Disparate Promotion and Advancement Opportunities

Example 1: An organization consistently overlooks its older employees for promotions and advancement opportunities in favor of their younger colleagues, regardless of their performance and experience.

Example 2: Despite similar qualifications and performance, a Korean employer gives better performance reviews to Korean employees.

Assigning Less Desirable Tasks or Responsibilities

Example 1: An organization always assigns the task of monitoring the company's parking lot to employees with disabilities. Meanwhile, they assign non-disabled associates more engaging tasks around the office.

Example 2: The office manager tasks female employees with sorting and filing documents regardless of their qualifications and job roles. He assigns equally qualified male employees within the same department more strategic and relevant responsibilities.

Unequal Access to Training and Development Opportunities

Example 1: An organization offers a prestigious leadership development program exclusively to white employees, effectively excluding employees of other nationalities from accessing the program's valuable training.

Example 2: An employer provides specialized skill training workshops to employees under 30, neglecting to offer similar opportunities to older employees, thereby limiting the older workers' professional growth and development.

Harsher Disciplinary Actions or Enforcement of Policies

Example 1: A manager regularly penalizes employees from minority racial groups with written warnings and eventual termination for minor infractions of the organization's attendance policy. In contrast, their white counterparts receive verbal warnings and leniency for similar violations.

Example 2: An employer reprimands women of color and sends them home for wearing cultural attire that violates the company's dress code. The same employer allows white women who violate the policy to stay at work with a simple reminder about the dress code.

Though are far from the only examples of disparate treatment, so it's important to be vigilant and proactive about avoiding this kind of discrimination in your workplace. (See "How to Avoid Disparate Treatment In the Workplace" below for steps you can take to build a safe and inclusive workplace.) 

Which Laws Protect Against Disparate Treatment?

Different legal protections exist to protect workers from disparate treatment. In the United States, there are a few key federal laws that offer protections from this type of discrimination:

• Title VII of the Civil Rights Act of 1964: This law protects employees against discrimination based on race, color, religion, sex, and national origin.
• Americans with Disabilities Act (ADA): The ADA prohibits employers from discriminating against people with disabilities and protects their right to an accessible workplace.
• Age Discrimination in Employment Act (ADEA): This law prohibits intentional discrimination against people over age 40.

States can also introduce their own legislation, offering further protections against disparate treatment. For example, New Jersey passed the Law Against Discrimination, which protects employees from discrimination based on, among other things, sex (including pregnancy), marital status, affectional or sexual orientation, gender identity or expression, atypical hereditary cellular or blood trait, and HIV status.

Why Disparate Treatment Discrimination Matters for Employers

As an employer, you have a responsibility to foster an inclusive workplace where everyone feels respected and valued. Here's why you should be concerned about disparate treatment within your company:

• It’s illegal: The most important thing to know is that disparate treatment may be unlawful, and it carries consequences both for the employee themselves and for your organization as a whole. Legal action can lead to financial losses, PR damage, tarnished reputations, and more.
• It’s toxic: These types of behaviors are simply inequitable and can be extremely harmful to employees. Disparate treatment creates an unequal playing field where certain groups of people don’t receive the same opportunities as others.
• It impacts morale and performance: When employees feel that they or their peers are being treated unfairly, it can cause tension in the workplace and a drop in morale. About 66% of respondents to a survey on discrimination and bias at work said that they felt a drop in commitment, morale, and motivation, according to the Society for Human Resource Management (SHRM).
• It costs you money: Disparate treatment isn’t just bad for employee morale — it can cost your business money, too. The costs associated with recruiting and training new employees can be substantial, so it’s important to create a workplace where people want to stay. Employee turnover due to racial inequity cost U.S. companies over $171 billion between 2015 and 2020, according to SHRM.

How to Avoid Disparate Treatment In the Workplace

Fortunately, there are steps you can take to protect your workplace from disparate treatment. Here’s what you can do:

Step 1: Create a Clear Anti-Discrimination Policy

This policy should set out exactly what types of behavior are and aren’t acceptable in the workplace, and can include a policy for anti-harassment. It should also clearly define which characteristics count as protected classes under applicable law and explain the consequences for engaging in discrimination or harassment.

Step 2: Identify Succession Planning Opportunities

Ensure that employees of all backgrounds and ages have access to the same opportunities for promotion, bonuses, or other career advancements. A strong success management program will identify a plan for growth for every employee and eradicate any potential disparities in treatment when roles open up internally.

Step 3: Create a Disciplinary Action Policy

Set out exactly what will happen if an employee engages in discriminatory behavior and make sure that there’s a clear process for dealing with any incidents. A defined disciplinary action policy can also help ensure that every employee is treated fairly when they're going through the disciplinary process, so that disparate treatment is avoided when consequences are handed out.

Step 4: Encourage Diverse Hiring

You can proactively work to create a diverse workplace by recruiting from a wide range of backgrounds and perspectives, and ensuring that your hiring practices are fair and equitable. This could include actively seeking out underrepresented group and culture adds – not just culture fits.

Step 5: Commit to Diversity, Equity, Inclusion, and Belonging

Help enshrine your commitment to DEIB throughout your company culture, from recruitment to internal processes to representation in leadership positions. If you're committing to goals and targets, then measure those outcomes and track progress. If you value employee feedback, then take valid criticism in stride and take action when you make mistakes — especially if team members warn you that disparate impact might be occurring.

Focus on Proactively Supporting Employee Wellbeing

When you commit to ridding your workplace of disparate treatment or any form of discrimination, you create space for psychological safety and support for your employees. But your impact doesn’t have to end there. Think of it like entering the ground floor of the skyscraper of employee wellbeing. It’s a good start, but there are plenty of steps to take before reaching the top.

And it’s important for you to climb those steps, since 85% of employees are more likely to remain in their roles if their employers take better care of their wellbeing. Whether it’s through interactions with your leadership team, your benefits package, or your wellness perks, your team members are looking for you to show real, meaningful support in their lives.

A corporate wellness program can help you look after your employees’ wellbeing, by letting them tap into a span of resources depending on what suits their needs. Physical, emotional, or mental wellbeing — they can prioritize their own wellness journeys, and you can help them along the way.

Speak to one of our Wellbeing Specialists today to learn about which services might work best for your own wellness program!