Disparate Impact & Disparate Treatment in the Workplace

social media, discrimination, disparate, workplace

In Social Media Recruiting & Social Media Discrimination I outlined some of the types of protected classes and discussed some real world possible scenarios regarding your company and social media discrimination.  In EEOC & Workplace Discrimination, I outlined potential liabilities and government agencies that are learning about social media. Now in part three, I’ll be discussing disparate impact and disparate treatment in the workplace.

Disparate Impact & Disparate Treatment in the Workplace

Social media is a goldmine for government agencies looking to turn their departments into revenue generating machines.  In 2010, OSHA added 100 additional field investigators focusing on enforcement and their sites set on lofty revenue goals of $559 million. In 2011, it is estimated the government agency will add an additional 25-50 compliance officers.  I believe the same holds true for agencies like the EEOC.  It is only a matter of time before they seize the income opportunity that social media and social media discrimination brings.

As pointed out by Stephanie Thomas (a Blogging4Jobs reader), social media also raises additional areas for discrimination in disparate treatment and disparate impact.

Stephanie says, “The use of social media in recruiting raises two potential areas for discrimination: disparate treatment and disparate impact. Disparate treatment is what we usually think of when discussing discrimination – it’s intentionally treating people differently because of gender, race, age, disability, etc.”

Disparate Treatment Discrimination

Disparate treatment is defined as when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII. The issue is whether the employer’s actions were motivated by discriminatory intent. Discriminatory intent can either be shown by direct evidence, or through indirect or circumstantial evidence.

Disparate Impact Discrimination

Disparate impact is defined as when an employment practice may be considered discriminatory and illegal if they have a disproportionate “adverse impact” on members of a minority group. Under the doctrine, a violation of Title VII of the 1964 Civil Rights Act may be proven by showing that an employment practice or policy has a disproportionately adverse effect on members of the protected class as compared with non-members of the protected class.

So what does this mean for social media discrimination?

Social Media, Disparate Treatment & Disparate Impact

Stephanie (who commented on my earlier articles on social media discrimination) says, “Using social media in recruiting and hiring has the potential to create both disparate treatment and disparate impact. However, if a few simple steps are followed, social media can be used to recruit and hire individuals safely and effectively.”

When job applicants fill out employment applications, they are not supposed to be asked questions that might reveal what I call the Big 7 (age, sex, religion, disability, race/color, national origin, pregnancy and most recently added genetic information), however companies who use social media have access to this information.  Rather quickly (as a recruiter) I can learn from a blog post or a Facebook profile about a candidate’s religious preferences and their age.  This could be considered disparate treatment if and when I seek out protected information on social media sites for one candidate or employee but not for others.

A disparate impact is a concern if recruiters and companies exclusively use social media to source and search for candidates.  For example, if a recruiter relies solely on Twitter to advertise job openings, they are reaching a predominantly Caucasian audience.  Quantcast’s most recent data tells us that Twitter is comprised of 69% Caucasian, 16% African American, 3 % Asian, and 11% Hispanic.  This audience is also an audience with a large percentage under 40 years of age.  Thirty-eight percent of Twitter’s users are between the ages of 34-50 +.

Since over two thirds of Twitter users are engaging using mobile devices, companies could possibly being singling out others as well.  Edision Research conducted a very thorough Twitter in America Study in 2010.  Those candidate pools without access to smart phones and mobile devices who quite possibly could be minorities would be excluded for further job opportunities if relying to advertise openings and source candidates on a single platform.

How to Avoid These Situations of Adverse Impact

The key is through clear communication to your recruiting and human resource teams while having a solid process in place.  Companies must continue to advertise openings in a variety of ways to reach the widest audience without causing discrimination.  Job boards, newspapers, magazines, and career fairs should continue to be leveraged in addition to social media to reach an audience representative of the community in where the position is located.

Check out Part 4 of the Social Media Discrimination Series.  Be sure to leave a comment below.  

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Jessica Miller-Merrell

Learn more about Jessica Miller-Merrell, SPHR, SHRM-SCP, the founder of Workology, a workplace HR resource, and the host of the Workology Podcast. More of her blogs can be found here.

Reader Interactions


  1. Pocahontas Lindsey II says

    I have worked for over 40 years. I am 58 years old and of the black race. I have never had a write up. I am a medical coder and have loved my job. I worked for this company for 7 years. I became supervisor of the coding department of 40 people. This job I have held for almost 4 years. My boss was fired. After my boss was fired and the new director came in, she decided to make the job a two manager job because she said it was too much for one individual. Heather and I both applied for our jobs. She has been in her position less than a year. Heather was hired. We were both supervisors. The new director decided on another candidate for my position. The lady said she did not think I would be “able to meet her demands.” She hired a lady (a friend) for my job and kept the other white supervisor. The lady she hired has never coded before. she has a masters degree in human resources. She does not even know what we do. You can not even go to her to ask a question. I adjusted to this. Now they are browbeating me. Both managers and trying to get rid of me. I have never been written up until now at 58 years old. One write up two weeks ago and now again on Friday because she said I was texting. I was tuning in Pandora so that I could listen to my Christian station and there was no way from that door that she could see me texting! This is my second write up. One more to go and they can fire me. This is personal. If I have worked all these years with good references, no life changing experiences, I am still the same, how can all of a sudden now I be a “bad employee?” I have submitted this to the grievance department at my work and have a meeting with them on Monday. They are doing little crazy things to try and get rid of me. On this same day that she said i was texting, she (Angela and Heather-managers) were in Heathers office with several employees looking at a u-tube video on Heather’s phone. Double standards. Laughing loudly so loud people went to see what it was and they were watching videos ON THE CELL PHONE, but I get written up. I am so stressed out. I am looking for another job, but I will not be ran off. I will fight for what i know is wrong and all the other older black people it is happening to also. I am afraid to come to work to think I can do any one thing and be fired after all these years of a good reputation. I can give you a supervisor from any job I have held, they only speak the highest of me and have told me they will also vouch for my reputation if I need them to. I am a person that was in control of thousands of dollars for my office in the past and not one dime ever came up missing. I have always had good work ethics. Comes from momma. I graduated the 12th grade and had never been absent. Don’t believe in being tardy either. I have always been this way. At the end of the year I always get a bonus because I have been present everyday and not ill. I am good to my work. I was taught to be good to my God, my family, my work and of course my little animals. I am not a liar or a person that trys to do wrong. If I even think I have harmed you I am there with an apology. We are all God’s children. I was brought up that way. As a supervisor I have never treated anyone the way I am being treated. EVER! You can talk to anyone I have worked with or work with now and they will tell you who I am. I am fair and a stand up kind of individual for the truth. That is why I will stand up for this. I have filed a grievance, but other people should know how people are being treated at this job. I intend to contact the NAACP on Monday also. There is another place within our job that has taken us over and I intend to file with them also. I do not think they know how people are being treated here. We are a subsidiary of a big hospital out in the boonies. This has gone on for a long time. Someone has to bring attention to it. I am already on my way out. They are trying to see to that. I will be the sacrificial lamb gladly if it will help some of the other people. I have nothing to lose now. My mother’s saying “some trials that happen in your life are not about you at all. They are about making the future better for someone else.” Please give me your thoughts on this. It is nice to have professional thoughts and advise. I am of the black race and have many people of the white race telling me this is not right and that I should fight. It is not right. It does not feel right. I know it is not. Thank you!



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