Disparate treatment is a form of discrimination that occurs when an employer treats an employee or group of employees differently, i.e., unequally or unfairly than other employees who are similarly situated.
This can include employees who are of the same race, color, creed, national origin, sex, age, or otherwise protected under discrimination laws.
Disparate treatment is often the result of unconscious bias, and it can have a negative impact on employee morale and productivity.
When is Disparate Treatment Considered Discrimination?
Disparate treatment is only considered discrimination if the employer’s actions are based on a protected characteristic.
For example, if an employer treats a woman differently than a man, but the employer has a legitimate reason for doing so (such as a dress code that applies to all employees), then there is no discrimination.
However, if the employer’s actions are based on a protected characteristic and there is no legitimate reason for the different treatment, then it is considered discrimination.
For example, if an employer treats a black employee differently than a white employee, and the only difference between the two employees is their race, then that would be considered disparate treatment or discrimination.
What are Some Examples of Disparate Treatment?
Some examples of disparate treatment include:
An employer refusing to hire someone because of their race
An employer paying a woman less than a man for doing the same job
An employer refusing to promote a qualified employee solely because of their age despite having the same experience and capabilities
An employer refusing to allow an employee to take leave for their religious observances
An employer not making reasonable accommodations for an employee with a disability
These are just a few examples – there are many other ways that an employer could engage in disparate treatment.
How Does Disparate Treatment Differ from Disparate Impact?
Discrimination can occur in many forms, but generally, it can be boiled down to two types: disparate treatment and disparate impact.
Disparate treatment occurs when an individual is treated less favorably than another individual because of their membership in a protected class.
Disparate impact occurs when a superficially neutral policy or practice has a discriminatory effect on a protected group.
Disparate treatment is intentional discrimination, while the disparate impact is unintentional discrimination.
For example, a policy that requires all employees to work on Saturdays might have a disparate impact on employees who are religious and observe Sabbath quite strictly.
However, if the policy was implemented with the intention of discriminating against Sabbath-observant employees, then it would also be a case of disparate treatment.
Disparate treatment is easier to prove because it requires that there be a direct link between the discriminatory action and the protected characteristic.
Disparate impact is more difficult to prove because it requires that the discriminatory effect of the policy or practice is significant and that there is no other explanation for the discriminatory effect.
Disparate treatment can occur in any aspect of the employment relationship, including hiring, firing, promotions, job assignments, pay, and benefits.
If you believe that you have been the victim of illegal disparate treatment, you should contact an experienced employment discrimination attorney to discuss your case.
An attorney can help you understand your rights and options and can help you pursue a claim if appropriate.
What are the Consequences of Illegal Disparate Treatment?
If an employee is the victim of disparate treatment, they may be able to file a lawsuit against their employer.
If the employer is found to have discriminated against the employee, they may be required to pay damages to the employee, as well as compensate them for legal fees. The employer may also be subject to other penalties, such as an injunction against future discrimination.
To prove a claim of disparate treatment, an employee or job applicant must show that he or she was treated differently than other employees or applicants who are similarly situated in terms of job qualifications, performance, and conduct.
If an employee or job applicant can show that he or she was treated differently than other employees or applicants who are similarly situated, the burden then shifts to the employer to show that the different treatment was based on a legitimate, nondiscriminatory reason.
If the employer cannot show a legitimate, nondiscriminatory reason for the different treatment, the employee or job applicant may be able to prove that the employer's stated reason is a pretext for discrimination.
The pretext is a false reason that the employer gives to cover up the real reason for the different treatment.
When is Disparate Treatment Not Illegal?
There are a few situations in which disparate treatment is not illegal.
For example, if an employer has a policy or practice that treats all employees the same, regardless of their protected status, then that policy is not illegal.
Additionally, if an employer can show that a policy or practice is necessary to achieve a valid business purpose, then it may not be illegal.
How can Employers Avoid Disparate Treatment?
The best way to prevent disparate treatment in your workplace is to have clear policies and procedures in place that prohibit discrimination.
These policies should be communicated to all employees and should be enforced consistently.
Additionally, you should provide training to all employees on what constitutes discrimination, how to prevent it from happening, and how to report it if it occurs.
