How to Identify Disparate Treatment in the Workplace

The protected class exists to give qualified people a weapon against any form of harassment relating to a specific personal trait. These qualified people are protected by both state and federal employment laws, like Title VII of the Civil Rights Act, which forbids, among other things, discriminating people on the basis of their sex, race, ethnicity, religion, etc. Other laws, such as the Pregnancy Discrimination Act, further define the language of employment discrimination law for the people that make up the protected class.

All employers are required to prevent and address discrimination against employees who belong to the protected class. If discrimination exists in the workplace, whether intentional or not, an aggrieved employee can file a claim of disparate treatment in the workplace, alleging that the employer has discriminated against that particular employee based on their membership in a protected class.

What is a disparate treatment claim?

A disparate treatment claim is a way to prove wrongful employment discrimination against an employer who supposedly treats other employers differently than others, with the difference in treatment based on protected traits like race, gender, age, and the like.

For example, a fired female employee can assert that she was terminated because of her gender, while her employer can argue that she was let go because of mounting customer complaints. If the employee can prove that her male colleagues have received an equivalent number of complaints (or more) but weren’t fired, she could be entitled to compensation.

Identifying disparate treatment

To identify disparate treatment and prove the employee’s claim, the affected employee must gather enough evidence for the judge or jury to rule that discrimination did occur. This is called presenting a “prima facie” case, to which the employer must counter that the supposed unfair treatment was legitimate and nondiscriminatory.

The prima facie case

The type of evidence that an employee can present in a prima facie disparate treatment case can be direct or indirect. Since direct evidence is often hard to obtain, most disparate treatment claimants resort to the indirect method, which relies on circumstantial evidence.

For circumstantial evidence to be accepted by the court, it must meet four basic criteria:

  1. That the plaintiff is a member of a protected class
  2. That the employee was deserving of the employment benefit in question
  3. That the employee was denied the employment benefit in question
  4. That the employment benefit was given to someone who is not part of the protected class

Employer’s proof of nondiscrimination

After an employee asserts discrimination, the employer must simply demonstrate that it followed all pertinent laws. Therefore, the burden of proof rests on the complainant; the employer is not required by law to prove that it didn’t discriminate—it just needs to show evidence that they treated their employees fairly and in a nondiscriminatory manner.

Employers can point to a host of reasons to justify the seemingly discriminatory treatment of the employee. Typically, justifications relate to the employee’s qualifications and behavior (e.g., too many customer complaints, poor performance, etc.). Other reasons include economic downturns like the one brought about by the pandemic, and so on.

Employee’s burden of proof

As stated, the burden of proof falls on the complainant/employee. Thus, after the employer presents their reasons to terminate, the employee must prove that these are false and serve as a pretext for discriminatory practices. The employee must then provide evidence supporting their claim. This evidence can be one of the following:

  • Reasons for termination keep changing

If an employer’s reason for termination changes depending on which is convenient at the moment, then that’s a clue. For example, an employer tells the employee that they’re part of a mass layoff, but informs the court that the employee was terminated because they consistently failed to meet company productivity targets.

    1. Discriminatory statements on social media

These days, statements made on social media and other online channels have proven to be the downfall of many individuals and their companies. If a manager, owner, or board member of the company posts a discriminatory statement online, and the company proceeds to lay off a large percentage of the protected class affected by that statement, then that can be construed as evidence of pretext.

    1. Unequal application of rules

If an employer fails to consistently apply their own legitimate and nondiscriminatory reasons on employment decisions, this could point to pretext. For instance, if the employer claims that the aggrieved employee was not promoted because they did not have a college degree but other non-degree-holding employees managed to climb up the ranks, then the facts as they stand would have to cast doubt on the employer’s assertion.

Consult a discrimination attorney today

Have you been subjected to disparate treatment? An employment attorney in San Diego, such as the lawyers at Hogue & Belong can help you understand your legal rights.

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