Legal Concepts Related to Discrimination
There have been some changes in the way scholars and practitioners discuss discrimination, but much of the language and processes used in legal proceedings around discrimination in selection processes still comes from the Uniform Guidelines, which identified two forms of discrimination: disparate treatment and adverse (disparate) impact.
Disparate treatment occurs when a job applicant from a protected class is treated differently from other applicants during the selection process. Specifically, when an applicant from a protected class applies and is qualified for a job, yet is rejected and the employer continues to look for a new hire without adjusting their qualifications, or hires someone else with the same or lower qualifications, there is evidence of disparate treatment. The key features of disparate treatment are that it can apply to a single person or a small group of people, and that it relates to an intentional difference in treatment because of membership in a protected class. Disparate treatment differs from the second form of discrimination.