Disparate Treatment

Disparate treatment is an element of employment discrimination. The term means that an employee was treated differently than other employees similarly situated, though in a legal sense, the different treatment must be based on the individual’s inclusion in a protected class. Discrimination is prohibited by the U.S. Constitution, and as such, the wronged person may take his case before the employment board, or to the court system. To explore this concept, consider the following disparate treatment definition.

Definition of Disparate Treatment

Noun

1. Treatment of an individual that is less favorable than treatment of others, for a discriminatory purpose
2. Discriminatory treatment of an employee for reasons of his inclusion in a protected class

Definition of Disparate

Adjective

1. Essentially different, dissimilar, or distinct in kind

Origin of Disparate

1580-1590       Latin disparātus  (“separated”)

What is Disparate Treatment

Disparate treatment is a claim of discrimination in which an individual complains to have been treated differently than other people in a similar situation, but who don’t share the individual’s protected class. Disparate treatment is a common element of proving employment discrimination, but it occurs in other areas of life as well, such as loan approval, housing, and educational opportunities. Disparate treatment may range from obvious discrimination, to subtle differences in treatment. In order to have a legal claim for disparate treatment, it is not necessary that the discriminatory treatment be intentional, or even that it be motivated by prejudice.

For example:

Marge has been working as a teacher at her school, in a depressed neighborhood with a large number of Hispanic children, for three years. She learned that, in an attempt to attract and keep Hispanic, Spanish-speaking teachers, the school district has offered special perks, including a summer bonus billed as a vacation booster. Marge, a white teacher who speaks Spanish, does not receive this bonus.

She makes a request to be given the same summer bonus as the other teachers, but the district denies her request, as it is specifically earmarked for those minority teachers. Marge may file a complaint with the employment division in her state, based on discrimination by disparate treatment. While the school district did not intend to discriminate against anyone, but only to entice Hispanic teachers to their school, the effect is the same. Interestingly enough, in this example of disparate treatment, Marge is not being discriminated against because she belongs to a protected class, but because she doesn’t.

What is a Protected Class

Federal anti-discrimination laws make it unlawful to discriminate against anyone on the basis of certain characteristics. Because these characteristics are protected by law, people having these traits or qualities are considered to be in a protected class.

Protected Classes

• Race
• Color
• National Origin
• Religion
• Age
• Sex
• Pregnancy
• Disability
• Veteran Status
• Citizenship
• Familial Status
• Genetic Information

Equal Employment Opportunity (“EEO”) laws were enacted to correct a pattern of unequal treatment of women and minorities. As the definition of protected class has expanded, it has become clear that everyone belongs to some protected class, and may be protected from discrimination by federal law.

Disparate Treatment vs. Disparate Impact

There are two ways in which a person may be treated differently, or “disparately,” for purposes of discrimination actions: (1) disparate treatment, and (2) disparate impact. The difference between the two has to do with intent and effect.

Disparate Treatment

The EEO defines this type of discrimination as: “Inconsistent application of rules and policies to one group of people over another.” In 1977, the U.S. Supreme Court defined disparate treatment as discriminatory acts in which “[t]he employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Proving disparate treatment often involves proving that the employer’s decision was motivated by the employee’s protected trait.

Disparate Impact

Disparate impact is not a matter of an employer’s intent to discriminate, but whether the outcome of some policy or practice results in discrimination against individuals in a protected class. This would include any practice that has a different, negative effect on minority groups, or other protected persons. An individual complaining of discrimination by disparate impact does not need to show that the employer had a discriminatory motive, only that its actions resulted in discrimination.

Proving a Disparate Treatment Complaint

Proving a claim of disparate treatment does not require proof beyond doubt. Rather, it requires the individual complaining of discrimination (the “plaintiff”) to make a prima facie case, which means he has to provide sufficient evidence to the court that there is at least the appearance of discrimination. The employer must then defend its actions, providing evidence of a reasonable, non-discriminatory reason for the acts.

The plaintiff may attempt to show that the employer’s seemingly innocuous reason is only a ploy or ruse, and was not really what happened. While the plaintiff need only persuade the court that the employer’s actions were based on discriminatory practices, the employer must produce evidence of its non-discriminatory reason for its actions.

It is not required that the plaintiff in such a case prove that his inclusion in a protected class was the only factor in the employer’s acts, but that it was a motivating factor. If, for instance, the employer had some other reason for its actions, and would have taken that route regardless of the plaintiff’s membership in a protected class, it is likely the plaintiff’s claim would not be successful.

Proving Employer Pretext

If an employer states what appears to be good reason for its discharge of the plaintiff in a disparate treatment discrimination case, the plaintiff may present evidence that creates doubt about the employer’s stated reasons, allowing the court to draw its own conclusion as to the true motivation behind the employer’s actions. Pretext may be brought into question by showing any of the following existed:

• Changing Reasons – If the employer has given different reasons for its actions throughout the period between the termination and the trial, it may be enough to prove pretext. For instance, the employer tells the employee she is being laid off because the company is down-sizing, but then claims in a deposition that she was fired because of customer complaints.
• Actions of Decision-Makers – Evidence of discriminatory motive, such as racist comments made by a supervisor, after which that supervisor was put in charge of deciding which employees would be laid off during a slow-down, may provide evidence of pretext, if the majority of employees laid off were minorities.
• Unequally Enforcement of Rules – Proof that the employer, who has policies and procedures, but enforces them differently among employees, may demonstrate pretext.

For example:

Juan, a hard worker who is praised by his coworkers and clients alike, is looking forward to being the first Hispanic employee to get a promotion to management at his company. When he is passed over for promotion, in favor of a co-worker who is generally seen to be less invested in his job, Juan is upset. When he questions his supervisor, he is told that he could not be given the promotion because he did not have a college degree.

Juan discovers that the newly-promoted Walter, a white man, does not have a degree either, which calls the employer’s motive into question. This example of disparate treatment may prove the employer’s pretext, or attempt to offer what seems to be a valid reason, but which is not true.

After-Acquired Evidence

After-acquired evidence is evidence of an employee’s wrongdoing or misconduct, gathered by the employer only after the employee’s discharge and claim of discrimination. Over the years, there has been some debate as to whether after-acquired evidence could prevent a plaintiff from winning his discrimination, or disparate treatment, lawsuit. In general, the courts have held that after-acquired evidence of misconduct unrelated to the grounds for termination can only prevent a plaintiff from being awarded reinstatement, injunctive relief, and front pay, if accepted at all.

For example:

Marge, the teacher in the example above, complains up the chain of command, and at the end of the school year, she is fired. Marge files a complaint for discrimination through disparate treatment, and asks that her job be reinstated, that she receive the same benefits offered minority teachers, and that she be paid back pay from her date of termination through the court’s decision.

During the course of the lawsuit, the school district comes up with evidence that Marge had misrepresented her education on her resumé, and submits that as proof that the termination was legitimate. Marge’s attorney points out, however, that the school district would not even have discovered the misstatement of dates in her educational background, had they not been searching for a defense to their own wrongdoing.

In this example of disparate treatment, Marge did not falsify her resume, but misstated some of the dates. It is unlikely that the school district’s introduction of evidence acquired after Marge’s termination on discriminatory grounds would be beneficial in its defense.

Disparate Treatment Example in Firefighter Promotions

In 2003, the New Haven Connecticut Fire Department needed to fill 15 management positions, having 7 openings for Captain, and 8 openings for Lieutenant. Like most civil service organizations, hiring is done by a “Rule of Three,” in which a civil service examination is given, after which the department chooses from the three highest-scoring applicants on the list. The City of New Haven’s exam gave 60 percent weight to the applicant’s score on the written test, and 40 percent weight to the applicant’s score on the oral exam.

What the City discovered, however, was that none of the department’s black firefighters had scored high enough on the test to even be considered for the positions. Fearful of being sued under a disparate treatment, or disparate impact, theory, due to the test’s disproportionate exclusion of certain racial groups, the City invalidated the test results, and did not promote anyone.

The City still faced a civil lawsuit, as 18 firefighters, who had passed the exam, complained that their civil rights had been violated, as the City had denied them promotions based on their race. Of the plaintiff firefighters, 17 were white, and 1 was Hispanic. The trial court ruled in favor of the City. The firefighters appealed their case to the U.S. Supreme Court in 2009.

The question to be answered by the high court was whether an employer may intentionally discriminate against one race of employees, in an attempt to lessen the unintentional, but disparate impact (or appearance of discrimination) a policy or practice has on another race of employees.  In a 5-4 split decision, the Supreme Court ruled in favor of the plaintiff firefighters. In its written ruling, the Court clarified the following:

1. The City, in fact, violated the firefighter plaintiffs’ civil rights, discriminating against them on the basis of race, by disregarding the test results, of which they had scored the highest, exposing them to disparate treatment.
2. Avoiding liability under disparate impact does not excuse disparate treatment discrimination.
3. To have a strong basis for invalidating the test results due to fear of a disparate impact claim, the employer must show that the exam was not, in fact, job related, and consistent with business necessity.

To put it simply, the Court ruled that possibility of a disparate impact lawsuit is not enough to excuse intentional reverse discrimination against another group of employees.

Related Legal Terms and Issues

• Civil Lawsuit – A lawsuit brought about in court when one person claims to have suffered a loss due to the actions of another person.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Discrimination – The practice of unfairly treating different categories of people, especially on the grounds of ethnicity, national origin, gender, race, religion, and sexual orientation.
• Front Pay – Employment compensation for the period between judgement ordering reinstatement, and actual reinstatement. Front pay is, like back pay, an award of lost earnings.
• Plaintiff – A person who brings a legal action against another person or entity, such as in a civil lawsuit, or criminal proceedings.
• Prima Facie – Either a piece of evidence that is presumed to be true when first viewed, or a legal claim in which enough evidence is presented to support the validity of the claim on its face.