Under Title VII of the U.S. Civil Rights Act, employers are required to treat employees equally and not discriminate against employees based on their status of being a member of a protected class. U.S. workers are also protected against discrimination through the Americans with Disabilities Act and the Age Discrimination in Employment Act.
When you are being treated differently than your coworkers based on your race, sex, religion, gender, age, ethnicity, sexual orientation, or disability, you generally known in your gut why you are being treated differently; however, it can be difficult to collect evidence to actually prove that you are being discriminated against based on a protected status.
However, under federal law in a framework set forth by the U.S. Supreme Court, if you present enough evidence to establish a claim of discrimination, then the burden of proof will shift to your employer to show a nondiscriminatory, legitimate reason for the treatment.
What is “disparate treatment”?
In the context of employment law, disparate treatment refers to an employer treating an employee differently on the basis of their status as a member of a protected class. Protected classes including your sex (including pregnancy), race, religion, national origin, ethnicity, disability, age, genetic information, or sexual orientation.
Disperate treatment may take the form of laying off employees over the age of 40 or 50 at a rate much higher than younger employees. Another example is when an employer allows a hostile work environment to exist in which employees are harassed based on their sex or sexual orientation. Disparate impact can also take the form of religious discrimination where members of certain faiths are given paid time off for their religious holidays, but members of another faith are not.
Disparate Treatment versus Disparate Impact
There is an important distinction to understand between disparate treatment and disparate impact. In a disparate treatment claim, the employee is claiming that the employer had a discriminatory motive in their differing treatment, whereas in a disparate impact claim, the plaintiff does not have to prove that the employer had a discriminatory motive, but simply that there was a policy or practice that was neutral on its face, but the impact of the practice or policy disproportionately impacted one group and there was no business necessity of the practice that can justify the disparate impact.
How do you prove disparate treatment?
If you bring an employment discrimination claim against your employer, you have an initial burden to make a prima facia (at first sight) case that you were discriminated against by your employer by a preponderance of the evidence – a legal standard that means more likely than not.
Then, the burden shifts to your employer to justify the actions against you with a nondiscriminatory reason.
If you employer is successful in presenting a non-discriminatory justification, then the burden will shift back to you to show that the justification was merely a pretext for the discrimination.
Racial or ethnic discrimination in an employer’s hiring practices may be evidenced by demonstrating disparate treatment of employment applications with names that are distinctly from a particular racial or ethnic group. The same can occur during the interview process and might even be subconscious discrimination on the part of the interviewer.
While this temporary burden shifting is helpful to plaintiffs alleging discrimination in the workplace, these claims can still be an uphill battle as evidence of discrimination is often inferred from circumstantial evidence rather than explicit statements by an employer admitting their unlawful and discriminatory motivations for taking some type of adverse employment action against you, harassing you in the workplace, or allowing a hostile work environment to exist.
How to Respond to Disparate Treatment Based on a Protected Status
If you believe that you are being treated differently in the workplace based on a protected status (as described above), the first thing you should do is document every comment, action, and instance of discrimination as thoroughly as possible.
If you believe that you can report the discrimination to a supervisor or your HR department without retaliation, then you should do so. However, you are not legally required to report the treatment to someone within your workplace before seeking legal advice. While it is not uncommon for an employer to explain away the disparate treatment as attributable to a reason other than your status as a member of a protected class, you may also find that there are policies and procedures in place internally to effectively investigate your allegations and address the issue.
If you do not feel that you can safely report the disparate treatment to your supervisor or HR department, or if you have reported the discrimination and nothing was done about it, you were terminated, or otherwise retaliated against, you should contact a knowledgeable and experienced California employment attorney.
Our team of employment attorneys regularly help employees just like you to seek the justice and recourse they are entitled to after experiencing discrimination in the workplace. If you believe you may fall within this type of discrimination, you should consult with an experienced California employment law attorney. The best step to take is to consult with our team now. Reach out for a confidential and free consultation here.
