What Is Disparate Treatment?

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Equal employment opportunity is a key feature of current U.S. labor law. Businesses are expected to treat their employees and job candidates based on the merit of their relevant qualifications. However, unfortunately, this is not always the case.

When employees feel they have been discriminated against, they can take serious legal action as they have the evidence to back up their claims.

Key Takeaways:

• Disparate treatment can be the result of a person’s race, religion, gender, or age, among other protected traits.

• Organizations with chronic disparate treatment face negative consequences from the government, the general public, and their employees.

• Disparate treatment must be proven by the employee. The employee must also successfully cross-examine the employer’s defense.

What Is Disparate Treatment?

Disparate treatment is a type of workplace discrimination where an employee is intentionally treated in an unequal manner due to certain characteristics about them.

These characteristics are known as protected characteristics, found under Title VII of the 1964 Civil Rights Act. Over time protected characteristics have grown to include:

• Race

• Color

• Religion

• Sex (including pregnancy, sexual orientation, or gender identity)

• National origin

• Age (40 or older)

• Disability

• Genetic information (including family medical history)

Disparate treatment is an important part of U.S. labor law. An employer who outright discriminates against an employee because of their race, religion, or any other protected characteristics can be accused of disparate treatment. If proven to be true, the employer will face serious legal and financial consequences.

Why Understanding Disparate Treatment Is Important

It is important to understand disparate treatment because the consequences of such actions will have a serious impact on your business.

Employers accused of disparate treatment have to deal with:

• Financial costs. Legal fees, lawsuits, fines, and other measures will directly affect a company’s finances. The indirect effects of disparate treatment can also have a financial impact, such as decreased sales, low productivity, and loss of business partnerships.

• Legal regulations. Depending on the extent and frequency of the discrimination, a company may have to deal with government oversight to rectify its business practices.

• Negative reputation. Companies accused of disparate treatment will have to deal with a negative impact on their reputation. This can affect further business activities, especially in the loss of customers or clients.

• Internal instability. Employees can feel very strongly about disparate treatment, even if it doesn’t affect them directly. They may see the injustice as a reflection of greater ethical or moral violations. Additionally, employees may feel less engaged and motivated, leading to higher rates of turnover.

Avoiding disparate treatment is not only good for business; it is also the right thing to do. You should want to promote a diverse, equitable, and inclusive workforce. Such a workforce leads to more innovation, expanded markets, and, most importantly, upholds human rights.

If you want your organization to be on the right side of justice, and see better business as a result, then you must prevent disparate treatment at all times.

How Is Disparate Treatment Proven?

Disparate treatment must be proven by the employee or potential employee, and the general process looks like this:

1. Employee accusation. The employee first needs to have enough evidence so that a judge or jury can infer there was legitimate discrimination. This is known as “prima facie,” Latin for “at first sight,” meaning that the judiciary officials could initially agree with the employee that there was blatant discrimination.

   There is a four-part test that the Supreme Court has provided to determine prima facie:

   • The employee is a member of a protected class.

   • The employee was qualified for some kind of benefit. This benefit could be a hiring, promotion, or continued employment.

   • The employee was denied that benefit. This could be a refusal to hire, a refusal for promotion, or a firing.

   • The benefit in question remains available or was given to someone who is not a member of the employee’s class.

   If the employee meets each criteria, then the judicial system can move forward to further determine if their accusations of disparate treatment are legitimate.

2. Employer rebuttal. After “prima facie” has been determined, it is up to the employer to defend themselves from the accusation.

   The employer will have to take whatever evidence the employee presented as discriminatory actions and find alternative answers for their activity.

   For example, the employee can make a claim that the employee was fired due to inappropriate behavior or laid off because of corporate restructuring.

   The employer’s defense needs to be clear and consistent if they want to make a convincing counterargument. Otherwise, it could make things worse for the employer.

3. Employee’s proof of pretext. After the employer’s defending argument, the employee then has to prove that the employer’s reasoning is a pretext for discrimination. Crucially, the employee needs only to call the employer’s reasons into question. The employee does not need absolute proof that the other motives are illegitimate.

   For example, the employee can reveal inconsistencies in the employer’s reasoning. Perhaps the employer initially stated the employee was fired due to character issues, only later to claim it was due to corporate restructuring. This would cast doubt on their reason and support the employee’s claim of pretext.

   When an employee casts doubt on the employer’s counterargument, the proceedings will then likely judge the employer to have committed disparate treatment.

In the end, documentation and consistency are key to ensuring a fair and just decision.

It is up to the employee to find a way to show that the discrimination was intentional and, therefore, disparate treatment. This requires enough evidence to contradict multiple explanations from the employer and highlight true motives.

Examples Of Disparate Treatment

Disparate treatment can take many different forms. The employee does not even need to be officially hired by the company for there to be discrimination.

Some examples of disparate treatment include:

• Refusal to hire. An employer may play favorites or else openly refuse to consider qualified candidates based on reasons related to their protected class characteristics. Although this can be difficult to prove, it is not impossible.

  For example, an employer may refuse to hire a qualified candidate simply because of their name or age. Then, if the employer hires another candidate or leaves the position open, the denied candidate might claim disparate treatment.

• Wrongful termination. How an employer terminates its employees is influenced by a collection of state and federal laws. In the case of disparate treatment, an employer can be accused of discrimination if they terminate an employee for reasons that are inconsistent with other employees outside their protected class.

  For example, imagine a young white male employee constantly shows up late to work and faces no consequences. In the same workplace, an older black female employee shows up late once and is immediately fired. All other factors between the two employees being equal could be interpreted as disparate treatment.

• Poor employment conditions. An employee does not need to be refused employment or terminated from their job to face discrimination. If an employer places an employee in inappropriate working conditions that is inconsistent with the treatment of other employees outside their protected class, they can be accused of discrimination.

  An example of this would be an employer forcing its female employees to use dirty basement bathrooms while providing clean, easily accessible bathrooms to its male employees.

• Refusal to promote. Similar to bad working conditions, an employee may face discrimination in their long-term experience with an employer. A classic example of this is a refusal to promote an employee based on their protected characteristics.

  Imagine a woman who is passed over for a promotion even though she is more qualified than the man who receives it.

Again, how these incidents occur greatly determines whether or not they can be valid claims of disparate treatment. That is why both employers and employees will need to be very clear on their reasons and provide consistent, documented evidence.

How to Avoid Disparate Treatment

To avoid disparate treatment in the workplace, as an employer, you must make sure to:

• Review diversity, equity, and inclusion strategy. Your DEI strategy is key to aligning your long-term business plans with the need to create a diverse, equitable, and inclusive work environment. A well-developed DEI strategy will help build policies that mitigate discriminatory behavior.

  If you ignore your DEI strategy, not only do you risk accusations of disparate treatment, but you also limit the potential of your workforce by missing out on talent elsewhere.

• Review policies that can be affected by discrimination. Take a look at your company policies and consider how they could be used to negatively impact employees through discrimination. Any policy that can be taken advantage of must be rewritten or removed.

• Train leadership. Your employees need to know that discrimination will not be tolerated from the top down. Therefore, train your leaders so that they don’t act in a discriminatory manner. Also, train them to act as allies to support those who feel discriminated against.

• Provide systems of accountability. When people are held to fair and accountable standards, they are more likely to act appropriately. Your organization needs policies and procedures in place that ensure that all unacceptable behavior results in consequences to dissuade further behavior.

• Document all decision-making. Many disparate treatment accusations stem from some sort of decision-making. Therefore, make sure all decisions have some sort of physical or digital paper trail. This documentation may be called upon to provide evidence in your defense.

• Provide employees with the opportunity to air grievances or give feedback. It is better to be proactive rather than reactive, especially when it comes to discriminatory behavior.

  Let your employees know that they can feel safe sharing any issues or feedback. Provide them with the necessary resources. It is especially important that you protect them from retaliatory actions.

Disparate Treatment vs. Disparate Impact

It is important to note the differences between disparate treatment and disparate impact, which is another form of discrimination in the workplace.

The main difference between the two is that while disparate treatment is an intentional act of discrimination, a disparate impact is an indirect form of discrimination.

Disparate impact normally occurs due to certain policies and procedures of an organization that affects employees disproportionately due to some characteristic. This can occur even if the policy or procedure is ostensibly neutral.

For example, a disparate impact could occur at an organization that decides to require all employees to meet a specific dress code. However, the dress code is inflexible and does not accommodate people who have physical differences such as weight, height, or hair type. These employees would experience a disparate impact from this policy.

Disparate Treatment FAQ

1. What is an example of disparate treatment?

   A classic example of disparate treatment is refusing to hire someone due to their race. Both conscious and subconscious biases play a role in this decision. Those with names that are common for a certain race or ethnicity are especially at risk of facing this type of discrimination.

2. What is disparate behavior?

   Disparate behavior is the unequal treatment of someone due to a protected characteristic. This can manifest as an intended act, which is known as disparate treatment. It can also be the result of a seemingly neutral policy, also known as disparate impact.

   Organizations need to take any type of disparate behavior seriously because it can result in serious legal repercussions.

3. What are the four parts of a disparate treatment discrimination claim?

   The four parts of a disparate treatment claim used to determine legitimacy are:

   • The employee can be considered a protected class.

   • The employee was obviously qualified for a benefit such as a hiring, promotion, or continued employment.

   • The employee was denied this benefit.

   • The benefit in question remains available or was given to someone who is not a member of the employee’s class.

   Establishing the four parts of a disparate treatment claim is the first step in the disparate claim process. After this, the employer has a chance to defend themselves, while the employee has a chance to cross-examine the employer’s defense.

4. What is victimization discrimination?

   Victimization discrimination is the result of someone being treated negatively because they complained about discrimination or helped someone else who faced discrimination. Victimization discrimination adds to the discrimination already in place.

   It is very common, which is why it is important to protect those who reveal discriminatory behavior and their allies. Without such protection, discrimination can go unchecked because people will be afraid to speak up.

References

1. U.S. Equal Employment Opportunity Commission – Who Is Protected From Employment Discrimination?

Author

Conor McMahon

Conor McMahon is a writer for Zippia, with previous experience in the nonprofit, customer service, and technical support industries. He has a degree in Music Industry from Northeastern University and in his free time he plays guitar with his friends. Conor enjoys creative writing between his work doing professional content creation and technical documentation.