What is disparate treatment discrimination — and how is it proven?

Whether at the federal, state, or local level, there are several laws and ordinances that prohibit various forms of workplace discrimination. A few of these many laws include the federal Age Discrimination in Employment Act (ADEA), which protects older workers from age-related discrimination, and the Americans with Disabilities Act (ADA), which protects disabled employees from discrimination.

But one of the most important anti-discrimination laws enforced today is Title VII of the Civil Rights Act of 1964. This seminal piece of federal legislation prohibits workplace discrimination based on race, religion, color, national origin, and sex, including gender identity, sexual orientation, and pregnancy.

Disparate impact vs disparate treatment discrimination

While allegations of workplace discrimination can come in many forms under these various anti-discrimination laws, two of the most common types include "disparate impact" discrimination and "disparate treatment" discrimination.

As its name suggests, disparate impact discrimination typically occurs when a seemingly neutral workplace practice unduly impacts a protected group — usually unintentionally. A common example often used is a workplace height requirement, which may have a disparate impact on women.

So, what is disparate treatment discrimination then? Simply put, disparate treatment discrimination is when an employer outright treats an employee or a potential employee differently because of that person's race, religion, color, sex, national origin, etc. Because this form of discrimination is so blatant, it is typically the most obvious. But while this may sound like a straightforward definition, it can be difficult for employees to prove — not to mention employers may have several defenses available to them.

How do employees prove disparate treatment discrimination?

When dealing with employment discrimination, the first thing an employee will typically need to do is make a prima facie case that they are the victim of unlawful discrimination. This is just another way of saying the employee has enough evidence to establish their claim, although the employer will have a chance to refute it (more on this later).

For example, if a job applicant believes a potential employer discriminated against them because of their race, the employee will typically need to be able to show the following in order to establish a prima facie case of racial discrimination:

• The applicant is a member of a protected class
• The applicant did, in fact, apply for the job and they were qualified for the job
• The employer did not hire the applicant for the job, despite their qualifications
• The employer kept the job open and continued to seek other applicants with the same qualifications as the applicant alleging discrimination

Keep in mind, however, that the exact requirements needed to make a prima facie discrimination case may differ depending on the situation and state.

A chance for the employer's rebuttal

If the employee or applicant can make their prima facie case, employers have the chance to make a rebuttal against accusations of discrimination. More importantly, though, employers don't need to disprove everything claimed by the employee. Instead, they merely need to identify a "legitimate, nondiscriminatory reason" for why they took the action they did.

For example, if an employee claims they were fired based on their race, the employer may say that they actually let the employee go because of company restructuring and the employee's position was no longer needed, or that tough economic times resulted in layoffs. Similarly, the employer could claim that the employee was actually fired for poor job performance or other issues with on-the-job conduct.

Assuming the employer is able to product a legitimate, nondiscriminatory reason for the firing, the burden then shifts back to the employee to show that this reason is merely pretext for discrimination. Inconsistencies in the reasons from the employer can raise red flags. They can't tell different stories about the decision, nor can they justify applying rules differently for different employees.

With the right documentation and consistency on both sides, a disparate treatment discrimination claim can be clearly made, whether it's absolving the employer or getting justice for an employee who faced discrimination in the workplace.

Want to learn even more about anti-discrimination laws?

Now that you've learned a little bit about disparate treatment discrimination and the many complex legal issues that surround it, you might want to dig a bit deeper and learn more about the many other state and local anti-discrimination laws that are enforced throughout the county — and the best way to do this is to give Practical Law from Thomson Reuters a try.

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