Disparate treatment is discrimination by an employer to an employee in which an employer intentionally treats an employee who is a member of a protected class differently from otherwise similar employees who are not members of a protected class.
When bringing a discrimination claim against an employer, the plaintiff must establish that they belong to a protected class, a group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic. The term “protected class” is defined in Title VII of the Civil Rights Act, a federal law that prohibits employers from discriminating against employees on the basis of sex, race, color, national origin, or religion. Also protected are those who qualify under laws related to age, pregnancy, and disability.
Typically, at the beginning of a discrimination claim against an employer, an employee would first need to report the discriminatory behavior through the reporting process at the company. If the discriminatory behavior continues after it is reported, the employee needs to exhaust—or fully pursue—their administrative remedies against the employer. These remedies ensure that the employee has followed procedures required to file the complaint and initiate the claim process. Only after these remedies have been exhausted can the employee file a lawsuit, becoming the plaintiff (the person bringing the lawsuit) and bearing the burden of proof.There are many ways employment discrimination can occur. One might be in hiring. The plaintiff has to establish that they applied for a position, or the job in question, and were qualified to do that job, meeting the employer's legitimate expectations as outlined for that position. Then, the plaintiff must establish that the employer rejected the plaintiff for the position. Last, the plaintiff must either show that the employer hired outside the protected class or, if they hired within the protected class, show that the employer paid them less than those outside the protected class. For example, Susana, a Hispanic 44-year-old woman, is a certified paralegal with more than 10 years of experience, and she applied for a paralegal position that matched her experience and skills. She was denied the job, and the job was offered to Tim, a white, 32-year-old male. Labor laws are in place to protect employees from wrongful actions by employers. Title VII is part of the Civil Rights Act of 1964, which prohibits discrimination against employees. Likewise, Congress established the Equal Employment Opportunity Commission (EEOC) in 1965 to ensure that businesses follow laws that protect workers.
Employers may not use employment practices that cause a disparate impact on a protected class of people. A disparate impact is the unintentional adverse effect that policies and procedures have on a particular class of people. There may be certain instances where it is justified and allowable by the employer, but only as long as the employer can prove it is a business necessity or a real occupational qualification and related directly to the position. For instance, Judy, a 60-year-old white female, who is six feet tall and weighs over 200 pounds, applied to be cast in the role of Peter Pan (a sprightly fictional boy who never grows up), but she was denied the position based upon a real occupational qualification. Proving this does not guarantee the employer will be free of liability and responsibility. An applicant can always challenge the denial of a job, and the employer may defend, based upon the occupational qualification or business necessity; however, the final determination will be made by the courts should the person pursue litigation in the matter.
Other laws protect veterans, military personnel, and those within protected classes as outlined in laws related to age, pregnancy, and disability. Employers must understand the laws that protect employees. Employers can be subject to both regular and compensatory damages, which means money that a court awards in a civil action to an individual who has suffered wrongful conduct by another. Employers are also subject to punitive damages, which is money awarded in a civil proceeding that exceeds simple compensatory damages. As the name indicates, punitive damages exist to punish the defendant for intentional and wrongful actions.