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.
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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.
Disparate Employment Actions: What is the Four Fifths Rule?
Federal agencies that are responsible for enforcing equal employment laws and civil rights have several ways they can evaluate the impacts of adverse job actions and disparate treatment on both individuals and groups. Individual concerns may be easy to evaluate by comparing job actions to peers; when systems are large and complex, however, finding the truth about how employees are being treated is more complex.
An example would be a large corporation with multiple offices in various cities, or a school district with many schools plus administrative offices. If gender, ethnicity, religion, or other federally protected classes of people are having job impacts based on their protected class, the discrimination may be so diffuse and spread out that it is hard to see.
The Four Fifths Rule
One way that large complex systems are evaluated for disparate treatment or job discrimination actions is by using the four fifths rule. When a job action or treatment is spread across a large group, there is some expected variability between how individuals are treated. But if that variability is too large, and always skews toward impacting a protected group, the federal agencies that protect and investigate equal employment opportunities will suspect job discrimination.
Another way to look at impact is by using 80%. If a large group is evaluated for a job action, there should not be more than 20% variability between the job actions of the highest scoring group and the job actions of the impacted group. If looking at promotions and opportunities for advancement, groups are evaluated by the impacted class- for instance, ethnicity or gender.
Using gender as an example, if the promotion rate of a group of men at a specific level of seniority is 100%, and the promotion rate for women at the same level of seniority is 70%, this is considered more impact than can be accounted for by individual differences. Any impact that is more than 80% of the highest rated group is considered an impact that is probably based on protected class.
Protected Groups Under Civil Rights Laws
Federally protected groups are protected because of an historical trend toward discrimination. Efforts have to be made in society for people in these classes to get fair treatment in the environment of unconscious bias and other, more overt forms of discrimination. In large systems, even leadership may not be aware of the subtle undercurrents that are impacting individuals without scrupulous monitoring and careful investigation of discrimination claims.
Adverse Impact Analysis
Also called Adverse Impact Analysis, this evaluation of trends across a large group of employees can also be done as part of human resource monitoring of job actions over time. Diversity and inclusion efforts understand that getting people into the door is only one part of the equation; there may be challenges across the job lifespan that need to be addressed through education and other efforts.
The four fifths rule is a rule of thumb. That means that it is an informal measure that has been used enough that it is considered a standard. The standard and this type of analysis or evaluation is common in human resources departments and other types of investigations into job discrimination. While many states also have additional employment discrimination protections, all states are bound to follow the rules under the federal equal employment opportunity laws.
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 online or call 952-641-7734 today to ensure that your rights are protected. Our team is standing by and looks forward to working with you.
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