Let’s be blunt: Workplace discrimination isn’t a relic of the past — it’s alive, surging and back on the national agenda. A new executive order in 2025 just raised the stakes, making it impossible for HR, ER and legal teams to take a passive approach. At the same time, our Ninth Annual Employee Relations Benchmark Study shows a disturbing spike in harassment, retaliation and discrimination claims — higher than we’ve ever seen.
That’s why it’s critical to distinguish two deceptively similar concepts: disparate treatment and disparate impact. They may sound like legal jargon, but don’t be fooled: Misunderstanding them could erode trust, damage culture and leave your organization exposed.
In this post, we’ll break down what these terms really mean — with real-world scenarios that show how bias can creep in both intentionally and unintentionally. More importantly, we’ll outline what you can do now to strengthen your practices and protect your people.
Because here’s the truth: Compliance isn’t the ceiling — it’s the floor. Building workplaces rooted in fairness and equity starts with understanding the rules then going beyond them.
What is Disparate Treatment?
Disparate treatment is defined as the differential treatment of individuals based on their membership in a protected class, such as race, gender, age or disability. It’s about intentional discrimination. This kind of discrimination shows up in hiring, promotions, pay decisions, performance evaluations, discipline — you name it.
If an employer knowingly favors or disadvantages someone because of their identity, that’s disparate treatment. And yes, it violates the law. Organizations must take proactive steps to prevent it — and that starts with awareness, training and documentation.
Protected Classes for Disparate Treatment
- Race and ethnicity: Discrimination based on race, ethnicity or national origin
- Gender: Discrimination based on sex or gender identity
- Age: Discrimination against individuals based on their age, particularly adults 40 years old and above
- Disability: Discrimination based on physical or mental disabilities
- Religion: Discrimination based on religious beliefs or practices
- Pregnancy: Discrimination against employees due to pregnancy, childbirth or related medical conditions
- Sexual orientation and gender identity: Discrimination based on sexual orientation or gender identity
- Veteran status: Discrimination against individuals who are veterans of the U.S. Armed Forces
- Genetic information: Discrimination based on genetic information, including family medical history
What is Disparate Impact?
Disparate impact, also known as adverse impact, is a form of discrimination when a seemingly neutral employment policy or practice disproportionately affects individuals in a protected class unfavorably.
Identifying disparate impact involves analyzing statistical data to determine if there is a significant disparity in outcomes for different groups based on their protected characteristics. Because of this, addressing disparate impact requires careful consideration of alternative practices that achieve business objectives without adverse effects on protected groups.
Since adverse impact falls under indirect discrimination, it can be trickier to spot. The key difference between disparate impact and disparate treatment? Intent. With disparate impact, there’s usually no intent to discriminate. But that doesn’t make the effect any less real — or any less risky.
Think hiring assessments, credit checks or physical requirements that sound fair but weed out certain groups at higher rates. That’s what disparate impact looks like in the workplace. And yes, it’s also illegal.
What’s the Difference Between Disparate Treatment and Disparate Impact?
This part’s simple — disparate treatment is intentional. Disparate impact is not. They’re both legally hazardous to your organization.
It’s the difference between choosing not to hire someone because of their age and using a “neutral” screening tool that disproportionately knocks older applicants out of the running. The first is a decision. The second is a system flaw. But both count — and both are deeply problematic.
Another example: A manager intentionally gives younger employees priority for vacation requests, while denying older employees the same flexibility. That’s disparate treatment. Disparate impact would be if the company’s vacation approval policy is based on speed of online submission. Employees who may be less comfortable with the digital system consistently lose out on preferred vacation dates.
Proving Disparate Treatment versus Disparate Impact
If you’re wondering how the courts view disparate treatment and disparate impact, here’s what you need to know:
In disparate treatment cases, the plaintiff has to prove they were intentionally treated unfairly because of a protected characteristic. The burden of proof is clear and high.
In disparate impact cases, the focus is on the policy. Once statistical disparities are shown, it’s on the employer to demonstrate the practice is a legitimate business necessity.
Bottom line? You need to understand what is disparate treatment, what is disparate impact and how to recognize both — because your policies and your people practices can be under the microscope if a court case materializes.
Disparate Treatment versus Disparate Impact Examples in Employee Relations
The best way to get a feel for disparate treatment versus disparate impact is by diving into real-world examples. Here are a few real-world examples that clarify the differences of each:
Disparate Treatment Examples
- Job Promotion: A manager consistently promotes younger employees over older, equally qualified candidates based solely on their age, despite the older employees having more experience and better performance records.
- Salary Negotiations: During salary negotiations, female candidates are routinely offered lower starting salaries compared to male candidates with similar qualifications and experience, solely because of their gender.
- Training Opportunities: An employer provides advanced training opportunities only to employees of a certain race, excluding others who are equally qualified and interested in professional development.
Disparate Impact Examples
- Pre-Employment Testing: An organization implements a pre-employment test that assesses physical strength. Although the test appears neutral, it disproportionately screens out female applicants because it measures strength criteria that are typically higher in male applicants due to physiological differences.
- Credit History Checks: A company institutes a policy requiring all new hires to undergo a credit history check. This practice disproportionately affects applicants from lower-income backgrounds or certain racial groups who may have historically faced economic challenges, resulting in fewer job offers for these individuals.
- Height Requirements: An airline imposes a height requirement for flight attendants, stating it is necessary for safety reasons. However, this requirement disproportionately excludes more women and some ethnic groups who tend to be shorter on average, potentially leading to claims of disparate impact.
Employee Relations-Specific Disparate Treatment and Impact Examples
Disparate Treatment:
Only younger employees are offered training opportunities or high-visibility projects.
A manager denies a promotion to an employee because they are not an American citizen.
A Muslim employee is denied a schedule accommodation for prayer, while similar schedule changes are granted to others.
Disparate Impact:
A company requires all employees to lift 50 pounds, even for desk jobs — unintentionally excluding employees with disabilities.
A “must work weekends” policy disproportionately impacts employees with certain religious observances.
Mandatory in-office work requirements inadvertently exclude employees with certain accessibility needs.
Sound familiar? That’s the thing — disparate treatment is about what someone does. Disparate impact is about what a policy causes even if no one meant it that way.
Dealing With and Avoiding Disparate Treatment and Impact
We repeatedly tell teams: Hope is not a strategy. If you want to protect your people and your organization, it takes real proactive work.
Here’s what you have to do:
- Audit Every People Process for Bias: Regularly audit compensation, hiring practices, performance evaluations and other people processes to identify and remove biases that may contribute to disparate treatment or impact. Analyze data to detect any patterns of disparate impact and address them promptly. Even if processes appear objective, this isn’t a one-and-done process. Continually make sure everything’s in order.
- Provide Comprehensive Training: Offer diversity and inclusion training to all employees, particularly managers and supervisors who play a crucial role in implementing company policies. Training should cover topics such as unconscious bias awareness, respectful communication and inclusive leadership practices. This education empowers employees to recognize and address discriminatory behaviors proactively.
- Create Clear Policies and Procedures: Establish clear policies that explicitly prohibit discrimination based on protected characteristics. These policies should outline fair and equitable practices in all aspects of employment, from hiring and promotion to compensation and disciplinary actions. Regularly review and update these policies to ensure they align with current laws and best practices and communicate them effectively to all employees.
- Promote a Culture of Diversity, Equity, and Inclusion (DE&I): Build an inclusive workplace culture where diversity is celebrated, and all employees feel valued and respected. Implement DEI initiatives at all levels of the company, including leadership training and employee resource groups. By embedding DE&I principles into the organizational culture, employers can mitigate biases and promote fairness.
- Document Everything: Maintain detailed records of employment decisions, performance evaluations, and any incidents related to discrimination or harassment. Clear documentation not only ensures transparency but also facilitates internal reviews and audits to identify and rectify potential biases or disparities. Keep all documents in one secure place with easy access using HR Acuity’s documentation software.
- Establish Anonymous Reporting Channels: Create confidential and safe avenues for employees to report incidents of discrimination or harassment. Implementing an anonymous reporting solution encourages open communication and allows employees to raise concerns without fear of retaliation. Provide clear guidance on how to use these channels effectively.
- Consult with Legal Professionals: Seek guidance from legal experts to ensure compliance with anti-discrimination laws and to handle complex issues related to disparate treatment or impact. Legal consultation can help navigate sensitive situations and mitigate legal risks effectively.
What the New Executive Order Means for Disparate Impact
The Trump Administration’s 2025 Executive Order has shifted the enforcement lens. The EEOC is now laser-focused on intentional discrimination — disparate treatment — and backing off from disparate impact unless intent is crystal clear.
But here’s the catch: Just because the EEOC pulls back doesn’t mean risk disappears. State agencies and private lawsuits still very much care about disparate impact. And if your values say “we want to be fair”— well, that has to include both intent and effect.
What It Means for HR and Employee Relations
This change demands more from HR and ER leaders — not less. Yes, the federal heat may cool off around disparate impact (for now) but you still need to show that your organization is in order.
That means:
- Scrutinizing hiring and promotion practices for objectivity and equity
- Vetting AI tools and automation for embedded bias
- Elevating your documentation — and making sure it’s compliant and defensible
- Training your managers to spot and stop disparate treatment in real time
- Leaning on platforms like HR Acuity to bring it all together — tracking, reporting and protecting the organization with data
Because even if enforcement shifts, your responsibility doesn’t. This is about doing right by your people.
Manage Cases of Disparate Treatment or Disparate Impact with HR Acuity
Now that you know how to define and differentiate disparate treatment and disparate impact, it’s time to put those insights into action. We shared how clear policies, DEI initiatives training and more can help you prevent and manage these forms of discrimination. By adopting these strategies, you’ll promote fairness, mitigate risks and cultivate a workplace culture that truly values equality and diversity.
Ready to see how HR Acuity can help you build a better workplace for your people — while also protecting your organization? Take a Curiosity Tour today and discover the difference.
