Disentangling Disparate Impact and Disparate Treatment: Adapting the Canadian Approach

Abstract

The legal framework for alleging disparate impact and disparate treatment claims in cases involving discriminatory employment standards has long been confused. The uncertainty of how to proceed in these cases has created analytical problems for both the federal courts and the litigants. There is a fine line between intentional and unintentional discrimination claims when it comes to employment standards, and that line is often blurred. A uniform approach for analyzing these cases is therefore needed. This article looks to the Canadian approach of analyzing discrimination claims in the employment standards context, and, borrowing from that model, proposes a three-part analytical framework for evaluating these types of claims in the U.S. The article then explores the implications of adopting this proposed approach, and applies the test to a federal appellate court decision on the issue. The article further explains how the model could be adopted without disturbing the current statutory structure.

Keywords: employment discrimination, discrimination, disparate impact, disparate treatment