How Do You Prove Disparate Treatment?

What is Disparate Treatment?

If an employee makes a claim of disparate treatment against his employer, it means that he believes that his employer has discriminated against him based on his membership in a protected class (race, religion, gender, national origin, sexuality, disability or other “difference”).  The employee can make such a claim under Title VII of the Civil Rights Act of 1964, the American Disabilities Act, the Pregnancy Discrimination Act and other federal statutes.

What is the Difference Between Disparate Treatment and Disparate Impact?

Disparate impact is unintentional discrimination, such as when a company’s policies are neutral but inadvertently result in discrimination against people in a protected class.  On the other hand, disparate treatment is intentional discrimination and more obvious.  For example, disparate treatment occurs when a company’s policies or practices single out individuals from a particular group and in some way treat them differently.

How Do You Prove Disparate Treatment?

1. Prima Facie Case

To prove disparate treatment, the employee (plaintiff) must first present a “prima facie” case, meaning that he must present evidence that discrimination has occurred. This evidence can be either direct evidence or indirect (circumstantial) evidence.

Direct evidence might be as simple as the employer admitting that its policies are designed to discriminate against certain protected classes.  Unfortunately, in most cases, direct evidence is hard to come by and the plaintiff must make his “prima facie” case with circumstantial evidence.

When using circumstantial evidence, the plaintiff must prove four basic elements:

  • That the plaintiff is a member of a protected class (such as African American, pregnant, over age 40, etc.)
  • That the plaintiff was qualified for the employment benefit in question
  • That the plaintiff was denied the employment benefit in question
  • That the employment benefit remained available after the plaintiff did not receive it or it was given to someone not in the plaintiff’s protected class.

2. Employer’s Non-Discriminatory Reason

Once the plaintiff makes his “prima facie” case, the employer must produce a legitimate, non-discriminatory reason for its actions.  As the burden of proof remains with the plaintiff, the employer does not have to prove that it did not discriminate, only that it had a non-discriminatory reason for its actions.

Often the employer will claim that his actions toward the plaintiff were based on the plaintiff’s qualifications. For example, he might say that the plaintiff lacked the needed skills for a job or did not have the necessary college degree for a promotion.

3. Proving the Employer’s Stated Reason is a Lie

Once the employer presents its reason for its actions, then the plaintiff must prove that the employer’s reason is a lie and only a pretext to hide its real motive, which is to discriminate against people in a protected class.  The plaintiff does not have to prove that the employer has an illegitimate motive but must present some evidence that the employer was actually motivated by discrimination.  Doing so lets the court come to its own conclusions regarding whether disparate treatment has occurred or not.

The plaintiff can attempt to show that the employer’s stated reason is a pretext in several ways, including:

  • Employer’s Shifting Reasons – For example, if the employer told an employee that she was fired for poor job performance but then later claimed in a deposition that she was fired because of company downsizing, then that might be enough to show pretext.
  • Comments by Employer Decision Makers – For instance, if a supervisor made racist comments about African Americans and then laid off a large percentage of African American employees, then that could be evidence of pretext.
  • Employer’s Unequal Application of Rules – For example, if an employer told an employee that he was denied a promotion because he did not have the right credentials but then promoted another employee without proper credentials, that could demonstrate pretext.

Contact Us Today To Stand Up For Your Rights

If you think you are a victim of disparate treatment, it is important to understand your legal rights.  Disparate treatment is illegal, but it takes a skilled employment law attorney to prove it.  Contact us today to ensure that your rights are protected.  Our team is standing and looks forward to working with you.


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