Disparate Treatment

Disparate Treatment refers to intentional discrimination in the workplace, where an employee or job applicant is treated differently based on a protected characteristic such as race, gender, age, religion, national origin, disability, or sexual orientation. It is a direct violation of anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964.

Unlike disparate effect (which focuses on outcomes), disparate treatment focuses on intent and actions. If an employer treats someone less favorably because of who they are, that’s disparate treatment.

Key Facts

• Prohibited by Federal Law: Covered under several U.S. laws, including Title VII (race, color, religion, sex, national origin), Americans with Disabilities Act (ADA), Age Discrimination in Employment Act (ADEA), and Equal Pay Act.
• Intent Matters: Disparate treatment involves a clear motive or intent to treat someone differently due to their protected status.
• Examples Include:
  
  • Not hiring a qualified woman because the job is “too physical”
  • Promoting younger employees over equally qualified older ones
  • Disciplining employees of one race more harshly than others for the same behavior
• Can Be Proven With Direct or Circumstantial Evidence:
  
  • Direct Evidence: Emails, comments, policies that explicitly show discrimination
  • Circumstantial Evidence: Patterns of behavior, inconsistencies in treatment
• Employee Must Establish a Prima Facie Case: This usually involves showing they belong to a protected class, were qualified, suffered an adverse employment action, others outside their class were treated more favorably.
• Employers Can Defend With Legitimate Reasons: The burden shifts to the employer to prove a non-discriminatory reason for the action, after which the employee may show that the reason is just a pretext.

1. What is disparate treatment in the workplace?

It’s when an employee or applicant is intentionally treated differently or unfairly based on a protected characteristic like race, gender, or age.

2. How is disparate treatment different from disparate impact?

• Disparate Treatment = Intentional discrimination
• Disparate Impact (effect) = Unintentional discrimination caused by a neutral policy

3. How do you prove disparate treatment?

You must show:

• You’re in a protected class
• You were treated differently than others
• There’s no legitimate, non-discriminatory reason for the employer’s action

4. What’s an example of disparate treatment?

If a company consistently refuses to promote women to management positions, even though they’re equally qualified, it may be disparate treatment based on sex.

5. Can disparate treatment occur during the hiring process?

Yes. If a company refuses to interview or hire someone based on race, religion, age, or any other protected factor, it’s a clear case of disparate treatment.