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« Discrimination #14 | Main | Employee's prima facie case #16 »

Disparate treatment #15
by Ross Runkel at LawMemo

“Disparate treatment” is a basic concept in employment discrimination cases. Lawyers classify employment discrimination cases as either “disparate treatment” cases or “disparate impact” cases.

In a disparate treatment case, the employee is claiming that the employer treated her differently than other employees who were in a similar situation. For example, both Jane and Paul skip work one day; the employer fires Jane but does not fire Paul. If the reason is because Jane is female, then this is disparate treatment because of sex which would violate Title VII. If the real reason is because Jane had a worse attendance record, then it could be disparate treatment because of differences in attendance, and therefore lawful.

[In a disparate impact case, the claim is that the employer has a practice that has a much bigger impact on one group than on another. For example, the employer won’t hire janitors unless they are high school graduates. This might have a much bigger impact on blacks as a whole than on whites as a whole. I’ll discuss this theory in detail in a later lesson.]

In the typical disparate treatment case the central issue will be whether Jane was treated differently because she was female or because of her attendance record. The “because” or “why” will be crucial.

Courts have developed some interesting methods for proving (and disproving) why Jane was fired. I’ll spend a few future lessons on this. Here is what I’ll cover:

Employee’s prima facie case. There is rarely a smoking gun, because employers usually do not say out loud that they’re firing someone because of sex. Therefore, courts have created methods for employees to use “circumstantial evidence” to help prove their case.

Employer’s non-discriminatory reason. Once the employee puts in her circumstantial evidence, the employer will usually reply by saying that she was fired for a “legitimate and non-discriminatory reason.”

Pretext. Then the employee can respond to that by proving that the reason offered by the employer was just a “pretext” or cover-up for an improper reason.

Coming next: Employee's prima facie case #16: Employment Law 101


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