In order to understand disparate treatment, it is important to first understand the concept of workplace discrimination. Workplace discrimination may also be referred to as employment discrimination. The term workplace discrimination is used to describe when an employee, or potential employee, is treated differently from other employees.
This disparate treatment is generally negative, and is not based on the employee’s job performance, but rather the fact that they possess specific characteristics. Additionally, the employee is treated differently from other employees who perform similar work tasks.
There are both federal and state laws that prohibit employers from practicing discrimination in the workplace. This is because it is every employer’s duty to ensure that every employee or applicant is treated fairly and equally. The following is a list of protected classes:
- Race or color;
- National origin;
- Sex or gender identity;
- Religious beliefs, or lack thereof;
- Political affiliation;
- Age;
- Disability or medical conditions;
- Pregnancy; and/or
- Sexual orientation.
If an individual is treated differently based on any of the protected classes above, then that is an example of outright disparate treatment. Disparate treatment discrimination is when an employer outright treats an employee, or a prospective employee, differently because of one of the above protected classes. Disparate treatment is often very obvious and blatant, as opposed to disparate impact.
Is Disparate Treatment the Same as Adverse Impact?
In short, no disparate treatment is not the same as adverse impact. Once again, disparate treatment involves an employer intentionally treating a particular person differently based on their race, religion, color, sex, national origin, etc.
In contrast, adverse impact, commonly referred to as disparate impact, is instead unintentional. Disparate impact occurs when workplace policies, practices, or rules that appear to be neutral on their face actually result in a disproportionate impact on a protected group or protected class. For example, issuing a workplace height requirement, although neutral on its face as a policy, may have a disparate impact on women.
Thus, disparate impact occurs when a seemingly objective or neutral practice has a disproportionate result on members of a protected group, whereas disparate treatment occurs when a particular group is intentionally targeted and discriminated against. When people think of workplace discrimination, they typically think of disparate treatment, rather than adverse impact. Further, disparate treatment is more common. Disparate treatment is the type of discrimination that most people think of.
What Is a Protected Group?
Once again, disparate treatment occurs when an employee or prospective employee is treated less favorably than other employees or prospective employees, because of their belonging to one or more protected classes. Disparate can also occur at any time, beginning when a person is looking for a job and ending after they have been hired as an employee. A protected group is a group of people that are specifically granted protections based on state and federal anti discrimination laws.
Once again, classes that are specifically protected from discrimination include:
- Race or color;
- National origin;
- Sex or gender identity;
- Religious beliefs, or lack thereof;
- Political affiliation;
- Age;
- Disability or medical conditions;
- Pregnancy; and/or
- Sexual orientation.
When an employee or prospective employee is treated less favorably than other employees or prospective employees because of their belonging to one or more protected classes then disparate treatment will have occurred.
For example, refusing employment to an otherwise qualified candidate based on their religious beliefs would constitute disparate treatment. Another example is when an employer fails to provide reasonable workplace accommodations to a disabled employee.
How Does Disparate Treatment Occur?
As mentioned above, disparate treatment may occur in a variety of different situations involving discrimination against an individual employee based on their belonging to a protected class. However, in order for an individual that believes that disparate treatment has occurred to succeed in a civil lawsuit against their employer, they will first need to make a prima facie case that they are the victim of unlawful discrimination.
Making a prima facie case of unlawful discrimination is another way of saying that the employee has evidence that tends to establish their claim that they are a victim of disparate treatment. The following is a list of elements that a victim of disparate treatment will need to support their prima facie case:
- The alleged victim is in fact a member of a protected class;
- The alleged victim suffered an adverse employment action as a result of their being a member of a protected class; and
- The alleged victim was fully qualified for their job.
- The employer kept the job open and continued to seek other applicants with the same qualifications as the applicant alleging discrimination
How Do I Prove I Received Disparate Treatment from My Employer?
The elements required for a victim of disparate treatment to prove their case are listed above. However, in general, if a person believes they have received disparate treatment from their employer, they will need to demonstrate to a court that either their employer or a prospective employer intentionally treated them differently simply because of their belonging to a protected class.
Examples of proof and evidence that will help support a disparate treatment claim include proof that the employer has repeatedly treated others of the same protected class unfairly. Other examples of evidence that a person may need to support their claim include, but may not be limited to:
- Written evidence of the discrimination, such as emails between supervisors, company policies, employee handbooks, job offers, and employment contracts, etc;
- Verbal communications, such as statements that were made in an interview
- It is important to note that it is hard to introduce evidence that was not recorded or witnesses by another party that is willing to testify regarding the discriminatory statements that were made; and
- Documents, such as pay stubs or human resources records.
Alternatively, an employer will most likely be attempting to prove that their actions were motivated by something else entirely, i.e. something unrelated to the victim’s protected status. Attempting to prove that their actions were motivated by a legitimate purpose is referred to as pretext. For example, stating that the employee was not actually qualified for the job, or that the company requirements changed and the employee was no longer a good fit, may be pretext.
In a disparate treatment lawsuit, proof of the employer’s actual intentions is absolutely imperative to success. As such, a disparate treatment discrimination lawyer is often necessary to prove the plaintiff’s (i.e. the party that was harmed) claims against their employer.
Should I Talk to a Lawyer about Disparate Treatment?
If you are experiencing disparate treatment in the workplace, especially if you belong to a protected class, you should consult with an experienced and local discrimination lawyer. State laws can vary in terms of disparate treatment, often providing additional protections to employees, so it is advised that you work with an area attorney to ensure you receive the most relevant legal advice that applies to your specific case.
An experienced and local employment attorney that specializes in discrimination can help you determine your next best steps and gather evidence to support your disparate treatment claim. An attorney will also be able to initiate a civil lawsuit against your former employer. Finally, an attorney will also be able to represent you in court, as needed, while protecting your legal rights.
