Encyclopedia of Psychology and Law

DISPARATETREATMENT AND

DISPARATEIMPACT EVALUATIONS

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’ con-

cern is most often focused on emotional damages in

lawsuits brought in relation to claims of sexual harass-

ment or work environments made hostile by racial

prejudice or sexual bias. This entry, however, focuses

on how forensic psychologists may function in cases

involving an employer’s work policies that affect indi-

viduals 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 privi-

leges 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 entry first provides a context for understanding

how and why these issues may be brought to court.

Next, it considers disparate treatmentand disparate

impactas patterns of employer activities. The entry

concludes with a discussion of evaluation issues for

forensic psychologists in these cases.

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 processand

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 protec-

tion in arenas such as voting and public accommoda-

tions, Title VII applies to employment and forbids

employers having more than 15 employees from dis-

criminating 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 employ-

ees 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 indi-

vidual’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 protec-

tion 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, dis-

crimination occurs when the employer does some-

thing 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 pro-

visions. These laws provide protection against discrimi-

nation based on age and disability, respectively.

Disparate Treatment

An employer may make decisions that directly disad-

vantage individuals from a particular protected class.

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