Abstract: This article explores the author's emotional reaction and reflections following the 2024 U.S. presidential election, in which an incumbent candidate secured both the electoral college and popular vote. As an educated, upper-middle class, straight, cisgender white man, the author grapples with his own privilege and the implications of the election result for marginalized communities. The piece delves into the concepts of "disparate impact" and "disparate treatment" discrimination, examining how these forms of systemic bias manifest not just in the workplace, but also in public policy and the legislative process, with examples provided across domains such as voting rights, criminal justice, environmental regulations, and education funding. The author outlines alternative policy, legislative, and legal approaches that could help address these complex issues of discrimination and inequality, concluding with a call to self-reflection and an urging of readers to consider their own complicity in perpetuating disparate impacts and to take concrete steps towards dismantling systemic inequities in society.
Last week I found myself staring at the TV screen in disbelief as the election results unfolded. Donald Trump had not only won the electoral college, but this time he had even captured the popular vote. As I processed the news, a mix of emotions swirled within me - disappointment, fear, and a deep sense of sadness.
For me, this wasn’t a partisan reaction at all. I am neither Republican nor Democrat; I don’t have a dog in that partisan race. I understand that intelligent, reasonable, well-intentioned individuals can and will have honest disagreements on a wide range of social, economic, and political policy issues and I often find myself voting for candidates from each major political party (and sometimes even for a 3rd party candidate). But in this election I also wasn't just voting for myself, or even just for my family. As an educated upper-middle class, straight cis-gender white dude, I recognize the many layers of my privilege. This society was built for people like me. My vote was also cast to support the interests of the vulnerable, the marginalized, the disenfranchised.
I wasn't surprised that Trump won; I knew it could go either way. But the sheer margin of his victory, and the fact that so many Americans had chosen to support him, hit me hard. This is a man who is a 34-time convicted felon, someone who lies constantly and who has repeatedly displayed blatant racism, sexism, and transphobia (based on his own words and actions). As a scholar and practitioner of leadership and effective organizations, I don’t see a person of character or integrity, only a toxic narcissist who causes chaos. His spoken and demonstrated values could not be further from my own. Personally, I can’t imagine someone less qualified or capable of leading the country. And yet, a majority of Americans voted for him.
Many friends and acquaintances were quick to defend their vote for Trump, insisting they aren't “bigots” themselves. Of course they aren’t, and I've never thought that they were (though certainly there is a portion of his base of support who are). But while they may not be racist, sexist, or transphobic themselves, their vote indicates they are okay with putting their support behind someone who is. The truth is, many of these individuals strive to follow a Christian ideal in their own personal lives, yet when it comes to standing up for, protecting, and advocating for marginalized communities, for some reason there seems to be a huge disconnect from those same aspirational Christian values. Even if they don't personally hold those same blatantly prejudiced views, the fact that so many are willing to overlook and enable such dangerous attitudes, behaviors, and policies is devastating to me. It is a sobering reminder that discrimination can take many insidious forms - it's not just about blatant, in-your-face bigotry, but also the more passive, systemic prejudice and discrimination where people often turn a blind eye.
As I grappled with these complex emotions, I couldn't help but wonder what Trump’s election would mean for the future of our democracy, and the vulnerable communities that I fear will likely bear the brunt of a Trump presidency. Now nearly a week later, the road ahead still seems daunting, filled with uncertainty. But even in the face of such dispiriting circumstances, I know that the fight for true equity and inclusion must continue. The work of dismantling discrimination, in all its guises, is more crucial than ever.
Discrimination and Its Impacts
Discrimination, in its many forms, continues to be a persistent challenge in our society, with far-reaching consequences for individuals, communities, and our collective well-being. Two key concepts in understanding and addressing discrimination are "disparate impact" and "disparate treatment" discrimination. These forms of discrimination manifest not only in the workplace (where we most often think of them), but also in the realm of public policy, where they can exacerbate existing inequities and create barriers to opportunity for marginalized communities. From voting rights restrictions and criminal justice practices to environmental regulations and education funding, the impacts of disparate impact and disparate treatment discrimination are far-reaching and often deeply entrenched.
Addressing these complex issues requires a multifaceted approach, including policy reforms, legislative action, and strategic legal challenges. As we continue, we will explore real-world examples of disparate impact and disparate treatment discrimination, analyze their impacts on organizational, social, and community contexts, and discuss alternative approaches that can help promote equity and inclusion in our society. By understanding the nuances of these concepts and their application, we can better understand the role we each play in either enabling or disrupting systemic discrimination and then work to root out all forms of discrimination and inequality in our society. I truly believe it is the desire of most people to create a more just and equitable future for all, where everyone can be treated with dignity and respect, and where we all will feel needed, wanted, and valued, with genuine opportunities to contribute in meaningful ways.
Two Distinct Kinds of Discrimination
As an academic researcher, organizational consultant, and university professor for the past two decades, I have had the opportunity to engage extensively in the HR, Change Management, and Social Impact space. There are two specific concepts that most of us have already been exposed to (think about that annual corporate diversity and discrimination training you get to do!): (1) Disparate Impact, and (2) Disparate Treatment.
Disparate Impact Discrimination: This occurs when a policy or practice has a disproportionately adverse effect on a protected group, even if the organization or institution had no intent to discriminate. This type of discrimination is based on the effects of the policy and practice, rather than the intent behind it.
Here’s a quick example within a workplace context: A company has a policy that requires all employees to be at least 6 feet tall to drive the company trucks. This policy may have a disparate impact on women, as they are generally shorter than men on average. Even if the policy was not intended to discriminate against women, it could be considered unlawful if it cannot be justified by business necessity.
Disparate Treatment Discrimination: This occurs when an individual, organization, or institution treats an individual or a group of individuals less favorably than others based on a protected characteristic, such as race, gender, age, or disability. This type of discrimination is based on the intent to treat someone differently due to their identity and/or protected status.
Here’s a quick workplace example: An employer consistently promotes male employees to management positions over equally qualified female employees. This would be an example of disparate treatment discrimination based on gender, as the employer is intentionally treating the female employees less favorably due to their gender. This would be the case whether they realize they are doing it or not (as it could be an unconscious bias influencing them).
While disparate treatment discrimination is often considered the more blatant or “obvious” form of discrimination because of the directness and intent, in reality, the impacts on individuals and protected groups are often very similar to that of disparate impact discrimination. On the other hand, while disparate impact discrimination may seem more innocent because it is not intended, since it is often subtly “baked in” to the policies, practices, and procedures of an organization or institution, this form of systemic discrimination is insidious and can often be more difficult to first identify and then to root out.
Below are some additional examples of disparate impact and disparate treatment discrimination in the workplace that you may have witnessed or even experienced:
Examples of Disparate Impact Discrimination:
Educational Requirements: A job posting that requires a college degree for a position that does not actually necessitate one may have a disparate impact on minority or low-income applicants who may have less access to higher education.
Criminal Background Checks: Policies that automatically disqualify applicants with any criminal record, without considering the relevance or context of the offense, can disproportionately exclude racial minorities, who are more likely to have criminal records due to systemic biases.
English-Only Policies: Requiring employees to speak English-only in the workplace, without a clear business necessity, can have a disparate impact on employees with limited English proficiency, who are often immigrants or racial/ethnic minorities.
Examples of Disparate Treatment Discrimination:
Hiring Decisions: An employer who consistently hires candidates of a certain race or gender over equally qualified applicants from other protected groups, due to personal biases or stereotypes, is engaging in disparate treatment.
Promotions and Advancements: An employer who denies promotions to older employees in favor of younger workers, despite similar qualifications and performance, can be considered disparate treatment based on age.
Terminations: An employer who terminates an employee shortly after learning of their disability or pregnancy, without a legitimate business reason, would be an example of disparate treatment discrimination.
Compensation and Benefits: An employer who pays women or racial minorities less than their white male counterparts for performing the same job duties is engaging in disparate treatment based on gender and race.
The key differences here are the focus on intent versus impact. Disparate impact is about the disproportionate effect of a policy or practice, while disparate treatment is about the intentional differential treatment of individuals or groups based on identity or a protected characteristic.
Application to Public Policy and the Impacts on Social and Community Contexts
The concepts of disparate impact and disparate treatment discrimination don’t just apply to the workplace. These definitions and their application can also be applied to public policies and their impact on social and community contexts. Remember, this doesn’t need to be a partisan debate, this is about not discriminating and treating all people with dignity and respect. Here are some examples:
Examples of Disparate Impact in Public Policy:
Zoning and Housing Policies: Zoning laws that restrict the development of affordable housing in certain neighborhoods can have a disparate impact on low-income and minority communities, limiting their access to quality housing and economic opportunities.
Transportation Infrastructure: Decisions about the placement and funding of public transportation systems can disproportionately disadvantage marginalized communities, such as limiting access to jobs, healthcare, and other essential services.
Internet Access and Digital Divides: Broadband deployment and access policies that fail to adequately address the digital divide between urban and rural areas, or between high-income and low-income households, can have a disparate impact on marginalized communities' ability to access essential online resources.
Healthcare Funding and Resource Allocation: Decisions around the distribution of healthcare funding, resources, and services that result in poorer health outcomes for certain demographic groups, such as racial minorities or the elderly, can be seen as having a disparate impact.
Examples of Disparate Treatment in Public Policy:
Criminal Justice Policies: Sentencing guidelines, drug enforcement practices, and other aspects of the criminal justice system that result in harsher treatment of racial minorities, despite similar offenses, can be considered disparate treatment.
Social Welfare Programs: Eligibility criteria, benefit levels, and administrative procedures for social welfare programs (e.g., Medicaid, food assistance) that create barriers for marginalized communities can be viewed as disparate treatment.
Disaster Response and Recovery: The allocation of resources and prioritization of assistance following natural disasters or other emergencies can have a disparate impact on low-income and minority communities, if not addressed equitably.
Language Access in Public Services: Failing to provide meaningful language access (e.g., translation, interpretation) for individuals with limited English proficiency when accessing public services can be a form of disparate treatment based on national origin.
Disability Accommodations: Policies or practices that fail to provide reasonable accommodations for individuals with disabilities in the context of public programs, facilities, or services can constitute disparate treatment.
LGBTQ+ Rights: Laws or regulations that deny or restrict the rights and protections of LGBTQ+ individuals, such as access to housing, employment, or public spaces, can be considered disparate treatment based on sexual orientation or gender identity.
In these examples, the focus is on how public policies, even if seemingly neutral, can have disproportionate negative effects on marginalized communities (disparate impact) or intentionally treat certain groups differently (disparate treatment), often exacerbating existing social and economic inequalities, underscoring the importance of focusing on equity and inclusion in the policymaking process.
Addressing these issues requires a nuanced understanding of the complex interplay between policy, community contexts, and the lived experiences of diverse populations.
Application to the Legislative Process and Impacts on Social and Community Contexts
The concepts of disparate impact and disparate treatment discrimination can also be applied to the legislative process and the resulting impact on communities and individuals. These issues are often heavily politicized (much to my dismay), but they don’t need to be. Here are some examples:
Disparate Impact in Lawmaking and Implementation:
Voter ID Laws: Seemingly neutral voter ID laws that impose strict requirements (e.g., specific types of identification) can have a disparate impact on marginalized communities, such as racial minorities, the elderly, and low-income individuals, who may face greater barriers to obtaining the required documentation.
Mandatory Minimum Sentences: Criminal justice policies that establish mandatory minimum sentences, even for non-violent offenses, can have a disparate impact on communities of color, who are disproportionately impacted by harsher sentencing practices.
Criminal Justice Reforms: Well-intentioned criminal justice reform policies, such as the use of risk assessment tools in bail and sentencing decisions, can have unintended disparate impacts if the algorithms used to assess risk incorporate biases or fail to account for systemic inequities.
Education Funding Formulas: The way public school funding is determined, often relying on local property taxes, can create disparate impacts on schools serving low-income and minority communities, perpetuating educational inequities.
Environmental Regulations: Policies aimed at addressing environmental issues, such as emissions standards or waste disposal regulations, may have a disparate impact on marginalized communities if the benefits and burdens are not equitably distributed.
Disparate Treatment in Lawmaking and Implementation:
Gerrymandering: The practice of manipulating the boundaries of electoral districts to favor one political party or demographic group over another can be considered a form of disparate treatment, as it dilutes the voting power of certain communities.
Discriminatory Enforcement of Laws: Law enforcement practices that disproportionately target and arrest individuals from specific racial or ethnic groups, even for similar offenses, can constitute disparate treatment.
Unequal Funding for Public Services: Budgetary decisions that allocate fewer resources or provide lower levels of funding for public services (e.g., education, infrastructure) in certain communities, based on factors like race or socioeconomic status, can be seen as disparate treatment.
Voting Rights Restrictions: Restrictions on early voting, mail-in ballots, or voter ID requirements that disproportionately burden certain racial or ethnic groups can be seen as a form of disparate treatment in the electoral process.
Immigration Enforcement Policies: Immigration enforcement tactics, such as workplace raids or traffic stops, that appear to target individuals based on their perceived immigration status or national origin can constitute disparate treatment.
Housing and Lending Discrimination: Policies or practices that deny or limit access to housing, mortgages, or other lending services based on race, ethnicity, or other protected characteristics can be considered disparate treatment in the housing and financial sectors.
These examples illustrate how the principles of disparate impact and disparate treatment discrimination can be applied to the legislative process and the implementation of laws, and how these dynamics can have significant consequences for marginalized communities and individuals.
Application to What is Happening in the U.S. Today
Now let's connect some of the examples of disparate impact and disparate treatment discrimination in public policy and the legislative process to what is happening in the United States today. While these issues are complex, If we can remember to think about the human impact of these policies and our collective commitment to nondiscrimination, I believe we can find commonsense answers:
Voter ID Laws and Voting Rights Restrictions: We have seen how many states have enacted strict voter ID requirements and other voting restrictions that have been found to have a disparate impact on racial minorities, the elderly, and low-income individuals, making it harder for them to exercise their right to vote. These issues have been extensively litigated, with the Supreme Court's recent decision in Brnovich v. Democratic National Committee upholding certain voting restrictions in Arizona.
Criminal Justice Reforms and Sentencing Disparities: While criminal justice reform efforts have aimed to address mass incarceration and racial disparities in the system, the implementation of risk assessment tools and mandatory minimum sentences can still have a disparate impact on communities of color. High-profile cases like McCleskey v. Kemp have grappled with the issue of disparate treatment in sentencing and the death penalty.
Fair Housing and Lending Discrimination: Discriminatory housing and lending practices that have a disparate impact on racial minorities and other protected groups continue to be a persistent problem, despite the Fair Housing Act and important Supreme Court decisions like Texas Department of Housing and Community Affairs v. Inclusive Communities Project.
Environmental Justice and Disparate Impacts: Low-income communities and communities of color often bear a disproportionate burden from environmental hazards, such as the siting of polluting industries or waste facilities in their neighborhoods. This disparate impact issue has been an ongoing concern in environmental policy and litigation.
Education Funding Inequities: The reliance on local property taxes to fund public schools has resulted in vast disparities in educational resources and outcomes between affluent and marginalized communities. Cases like San Antonio Independent School District v. Rodriguez have addressed the constitutional implications of these funding inequities.
Immigration Enforcement and Disparate Treatment: Immigration enforcement tactics, such as workplace raids and traffic stops, have been criticized for disproportionately targeting individuals based on their perceived immigration status or national origin, raising concerns about disparate treatment.
While I think we all would like to say we are not prejudiced or bigoted, we have to ask ourselves the question, do we support discriminatory policies? The examples above illustrate how the concepts of disparate impact and disparate treatment discrimination, as established in laws and court decisions, continue to play out in real-world policy debates and legal challenges, with significant consequences for the lives of individuals and communities across the United States.
Alternative Approaches
So what happens once we start to recognize the systemic forms of discrimination all around us? What can we do about it? Below are some alternative public policy, legislative, and case law approaches that could help address and mitigate disparate treatment and disparate impact discrimination in our communities and society:
Voter ID Laws and Voting Restrictions:
Policy Approach: Implement voter ID laws that provide free, accessible ID options for all eligible voters, and ensure that other voting requirements (e.g., polling hours, ballot drop-off locations) do not disproportionately burden certain communities.
Legislative Approach: Strengthen the Voting Rights Act to provide stronger protections against discriminatory voting practices that have a disparate impact.
Case Law Approach: Overturn or modify rulings like Brnovich v. Democratic National Committee that uphold certain voting restrictions, and establish clearer legal standards for evaluating disparate impact in the voting context.
Criminal Justice Reforms and Sentencing Disparities:
Policy Approach: Carefully design and implement risk assessment tools in the criminal justice system to minimize biases and disparate impacts, and eliminate mandatory minimum sentences in favor of more individualized, context-based sentencing.
Legislative Approach: Enact criminal justice reform laws that explicitly prohibit disparate treatment and require rigorous assessments of disparate impact in policies and practices.
Case Law Approach: Build upon precedents like McCleskey v. Kemp to establish stronger legal frameworks for addressing systemic racial disparities in sentencing and other criminal justice outcomes.
Fair Housing and Lending Discrimination:
Policy Approach: Robust enforcement of fair housing and lending laws, coupled with proactive efforts to address historic and ongoing patterns of residential segregation and unequal access to credit.
Legislative Approach: Expand and strengthen the Fair Housing Act to provide clearer legal standards and remedies for both disparate impact and disparate treatment forms of housing and lending discrimination.
Case Law Approach: Uphold and build upon landmark decisions like Texas Department of Housing and Community Affairs v. Inclusive Communities Project to solidify disparate impact as a valid legal theory in fair housing cases.
Environmental Justice and Disparate Impacts:
Policy Approach: Incorporate robust equity analyses into environmental policymaking and permitting processes, ensuring the fair distribution of environmental benefits and burdens.
Legislative Approach: Enact environmental justice laws that mandate consideration of disparate impacts on marginalized communities and provide mechanisms for community participation and redress.
Case Law Approach: Establish clearer legal standards for proving disparate impact in environmental cases, building on precedents like Title VI of the Civil Rights Act.
Education Funding Inequities:
Policy Approach: Implement school funding formulas that deliberately account for and address the disproportionate needs of low-income and minority students, rather than relying solely on local property wealth.
Legislative Approach: Pass laws that require equitable funding of public schools, potentially by reallocating resources at the state or federal level to offset local disparities.
Case Law Approach: Revisit and expand upon rulings like San Antonio Independent School District v. Rodriguez to establish stronger constitutional protections against educational funding inequities that have a disparate impact.
Immigration Enforcement and Disparate Treatment:
Policy Approach: Implement clear, non-discriminatory guidelines for immigration enforcement practices, and provide robust training and accountability measures to prevent disparate treatment.
Legislative Approach: Enact laws that explicitly prohibit immigration enforcement tactics that appear to target individuals based on their perceived immigration status or national origin.
Case Law Approach: Develop legal frameworks that firmly establish disparate treatment in immigration enforcement as a violation of constitutional rights and civil liberties.
By pursuing these types of alternative approaches in policy making, legislation, and case law, we can work towards a more equitable and inclusive society that is free from the harmful effects of systemic discrimination and create communities where everyone can be treated with dignity and respect, and where we all will feel needed, wanted, and valued, with genuine opportunities to contribute in meaningful ways.
Self-Reflection Questions
I believe we all have work to do when it comes to understanding the role we play in either maintaining and perpetuating unhealthy systems of discrimination or becoming disruptors that actively advocate for and support the marginalized around us. Below are some self-reflection questions we all might consider as we wrestle with the issues of disparate impact discrimination and systemic inequities in society, as well as how we can work towards positive change:
When I think about disparate impact discrimination, what specific examples come to mind from my own life experiences or the communities I'm a part of? How have I witnessed these kinds of subtle, systemic forms of discrimination playing out?
In what ways might I be complicit in perpetuating disparate impact, even if I don't hold overt prejudices or biases? Where am I overlooking or ignoring the unequal effects of certain policies, practices, or norms?
What are some of the deeply entrenched systems, institutions, or power structures in our society that seem to be producing disproportionate harms for marginalized groups? How do these disparate impacts manifest in areas like education, housing, healthcare, criminal justice, etc.?
How can I better educate myself about the nuanced ways discrimination operates, beyond just the more obvious, intentional forms? What resources or perspectives might help broaden my understanding of disparate impact and systemic inequities?
In my own spheres of influence - whether at work, in my community, or in my personal relationships - what steps can I take to actively counter disparate impact discrimination? How might I advocate for more equitable policies, challenge biased practices, or uplift the voices of those impacted?
What are some of the psychological and emotional barriers that make it difficult for people to acknowledge and address disparate impact, even if they don’t consider themselves racist, sexist, transphobic, homophobic, or bigoted in any way? How can I work to overcome those barriers within myself and in dialogue with others?
How might I leverage my unique skills, resources, and positions of privilege to support grassroots efforts, legal challenges, or policy reforms aimed at dismantling systemic discrimination and promoting true equity? Where can I best direct my time, energy, and resources to catalyze meaningful change?
What concrete steps can I take, starting today, to be more vigilant, proactive, and courageous in confronting disparate impact discrimination whenever and wherever I encounter it? How can I cultivate a daily practice of critical self-reflection and active allyship?
By reflecting deeply on these questions, we can begin to unpack the complex web of systemic inequities in our society, the role we play, and identify tangible ways to contribute to a more just, equitable, and inclusive future for all.
Conclusion
Starting as I began, I fear for the already marginalized communities in our society under a Trump presidency. Perhaps my fears are unfounded (I certainly don’t think so), but regardless, the challenges of systemic inequities and discrimination persist and addressing discrimination and inequity in all its forms is a critical challenge facing our society. The concepts of disparate impact and disparate treatment discrimination provide a framework for understanding the complex ways in which discrimination can manifest - both in the intent behind policies, practices, and procedures, as well as their disproportionate effects on marginalized communities.
As we have explored, these issues of discrimination arise not just in the workplace, but across a wide range of public policies and within the legislative process itself. From voting rights and criminal justice to housing, the environment, and education, the impacts of disparate treatment and disparate impact discrimination are far-reaching, with serious consequences for social and community contexts.
While the legal landscape around these issues continues to evolve, with both progress and setbacks in the courts, it is clear that a comprehensive, multifaceted approach is needed to dismantle both the more blatant and systemic forms of discrimination around us and promote true equity and inclusion. This requires thoughtful policymaking, legislative reforms, and strategic legal challenges that center the experiences and needs of marginalized populations.
By understanding the nuances of disparate impact and disparate treatment, and applying these frameworks creatively across different domains, we can work towards building a more just society - one where everyone is treated with dignity and respect, and has genuine opportunities to contribute and thrive. This is not an easy task, but it is a necessary one if we are to heal the wounds of discrimination and move closer to the ideal of equality that we aspire to as a nation.
Additional Reading
Westover, J. H. (2024). Optimizing Organizations: Reinvention through People, Adapted Mindsets, and the Dynamics of Change. HCI Academic Press. doi.org/10.70175/hclpress.2024.3
Westover, J. H. (2024). Reinventing Leadership: People-Centered Strategies for Empowering Organizational Change. HCI Academic Press. doi.org/10.70175/hclpress.2024.4
Westover, J. H. (2024). Cultivating Engagement: Mastering Inclusive Leadership, Culture Change, and Data-Informed Decision Making. HCI Academic Press. doi.org/10.70175/hclpress.2024.5
Westover, J. H. (2024). Energizing Innovation: Inspiring Peak Performance through Talent, Culture, and Growth. HCI Academic Press. doi.org/10.70175/hclpress.2024.6
Westover, J. H. (2024). Championing Performance: Aligning Organizational and Employee Trust, Purpose, and Well-Being. HCI Academic Press. doi.org/10.70175/hclpress.2024.7
Citation: Westover, J. H. (2024). Workforce Evolution: Strategies for Adapting to Changing Human Capital Needs. HCI Academic Press. doi.org/10.70175/hclpress.2024.8
Westover, J. H. (2024). Navigating Change: Keys to Organizational Agility, Innovation, and Impact. HCI Academic Press. doi.org/10.70175/hclpress.2024.11
Westover, J. H. (2024). Inspiring Purpose: Leading People and Unlocking Human Capacity in the Workplace. HCI Academic Press. doi.org/10.70175/hclpress.2024.12
Jonathan H. Westover, PhD is Chief Academic & Learning Officer (HCI Academy); Chair/Professor, Organizational Leadership (UVU); OD Consultant (Human Capital Innovations). Read Jonathan Westover's executive profile here.
Suggested Citation: Westover, J. H. (2024). Dismantling Discrimination: Breaking Down Systemic Inequities in Our Communities and Workplaces. Human Capital Leadership Review, 14(4). doi.org/10.70175/hclreview.2020.14.4.6.1
