To prove disparate treatment, the union must fully research the comparison employees, studying their personnel files, reviewing their investigatory interviews, and, most importantly, talking with them about what happened. (In many cases, these employees must be called to the stand).
Full Answer
When does disparate treatment occur in employment?
Whenever similarly situated individuals of a different race, sex, religion, or national origin group are accorded disparate treatment in the context of a similar employment situation, it is reasonable to infer, absent other evidence, that discrimination has occurred.
When is statistical evidence relevant to a case of disparate treatment?
Statistical evidence can be relevant in proving an individual case of disparate treatment because it is evidence of the presence of a discriminatory motive. See Teamsters, supra .
Why do unions get rejected in disparate treatment cases?
Yet unions who pursue such cases often find their claims rejected because the union is unable to counter the employer’s contention that the differences were justified. Contrary to common assumption, the disparate treatment rule does not require an employer to treat all employees alike.
What is a disparate treatment discrimination case?
Disparate Treatment Discrimination. Disparate treatment cases allege that an employee was treated worse than others based on a protected characteristic. Disparate treatment is a way to prove illegal employment discrimination.
How do you measure disparate impact?
To establish an adverse disparate impact, the investigating agency must (1) identify the specific policy or practice at issue; (2) establish adversity/harm; (3) establish significant disparity; [9] and (4) establish causation.
How do you prove disparate treatment in the workplace?
Disparate treatment occurs when an employer treats some individuals less favorably than other similarly situated individuals because of their race, color, religion, sex, or national origin. To prove disparate treatment, the charging party must establish that respondent's actions were based on a discriminatory motive.
What is used to determine whether an employment practice was based on a reasonable factor other than age?
What determines whether an employment practice is based on Reasonable Factors Other than Age? An employment practice is based on an RFOA when it was reasonably designed and administered to achieve a legitimate business purpose in light of the circumstances, including its potential harm to older workers.
What is the focus of disparate treatment cases?
Disparate impact cases focus on the effects of the employer's policy or practice rather than the employer's intent. The policy or practice must have the effect of discriminating against a protected class of people even though it does not single them out for different treatment.
What is the burden of proof in a disparate treatment discrimination case?
With federal disparate treatment claims under Title VII, employees do have the initial burden of proof. This means you must show that: You belong to a protected class – that is, you're protected from discrimination on account of your race, color, national origin, religion or sex.
How can plaintiff establish a prima facie case of disparate treatment?
To establish a prima facie case of discrimination based on disparate treatment a plaintiff must show that he (1) is a member of a protected class, (2) suffered an adverse employment action, (3) met his employer's legitimate expectations at the time of the adverse employment action, and (4) was treated differently from ...
What is the company's best defense against a claim of disparate impact by Frank in regards to his termination based on the company's policy?
What is the company's best defense against a claim of "disparate impact" by Frank in regards to his termination based on the company's policy? Frank is not covered under the ADA, but, even if he was, the employer has a legitimate safety reason for not employing obese shuttle drivers.
What is the four-fifths rule?
The Four-Fifths rule states that if the selection rate for a certain group is less than 80 percent of that of the group with the highest selection rate, there is adverse impact on that group.
What is the difference between disparate treatment and disparate impact discrimination?
Both disparate impact and disparate treatment refer to discriminatory practices. Disparate impact is often referred to as unintentional discrimination, whereas disparate treatment is intentional. The terms adverse impact and adverse treatment are sometimes used as an alternative.
What are some examples of disparate treatment?
Disparate treatment refers to intentional discrimination, where people in a protected class are deliberately treated differently. This is the most common type of discrimination. An example would be an employer giving a certain test to all of the women who apply for a job but to none of the men.
What is comparative evidence of disparate treatment?
Comparative evidence of disparate treatment occurs when a protected class applicant is treated less favorably than other applicants and is typically discovered through a comparative analysis during a fair lending examination.
What is one way for a plaintiff to prove a disparate impact quizlet?
One way for a plaintiff to prove disparate impact discrimination is: a. by comparing the employer's workforce to the pool of qualified individuals available in the local market.
How to prove a disparate treatment claim?
To prove a disparate treatment claim, an employee must first present enough evidence to allow the judge or jury to infer that discrimination took place.
What is disparate treatment?
Disparate treatment is a way to prove illegal employment discrimination. An employee who makes a disparate treatment claim alleges that he or she was treated differently than other employees who were similarly situated, and that the difference was based on a protected characteristic. In other words, the employee alleges ...
Why is an employee denied a promotion?
For instance, an employee is denied a promotion, and the employer claims that it was because the employee lacked an MBA. If the employee who was promoted also didn't have an MBA, the employer's decision looks suspect. Remarks by decision makers.
Why was Horacio fired?
The employer claims that he was fired because he received three customer complaints in the previous quarter. If Horacio can show that other employees who received three or more complaints in a quarter were not fired, and that those employees were not Latino, his argument looks better.
Why do employers lay off employees?
The employer might also rely on factors unrelated to the employee, such as an economic slowdown that necessitated layoffs, a decision to take a job in a different direction (for which the employee was unqualified), and so on.
What is the pretext for discrimination?
Once the employer states a legitimate reason for the decision, the employee must prove that it's a pretext for discrimination. This doesn't mean the employee has to come up with absolute proof of an illegitimate motive. Instead, the employee has to present some evidence that calls the employer's stated reason into question and allows the jury to conclude that the employer was really motivated by discrimination. Here are some examples:
What happens if Horacio's supervisor makes derogatory comments about Latino employees?
Similarly, if Horacio can show that his supervisor made derogatory comments about Latino employees or culture, his case is strengthened. On the other hand, if no such comments were made, and the employer can show that it has a strong record of hiring and promoting Latino employees, Horacio will have a tougher time.
What is disparate treatment and disparate impact?
Cite this article: Lynch, N. (2017). Disparate Treatment and Disparate Impact Are Tests for Discrimination but Employers Get Points for Being Intentional. Available: https://www.lynchlf.com/blog/disparate-treatment-and-disparate-impact-are-tests-for-discrimination-but-employers-get-points-for-being-intentional/
What is the legal test that courts must use to determine whether disparate treatment occurs?
The legal test that courts must use to determine whether disparate treatment occurs is whether the protected characteristic actually motivated the decision of the employer. To prove a claim of this nature, the employee who alleges discrimination must show the following:
What is discrimination in employment?
Disparate treatment is often referred to as intentional employment discrimination. It occurs when a legally-protected class of people are singled out due to such illegal reasons as their race, sexual orientation, ethnicity, age if over 40, disability, or sex. The employer may favor some employees or disfavor other employees due to such characteristics. This type of discrimination often occurs because of written or informal policies, such as requiring only people of a certain race to take a competency test but not require others to take the same test.
What is disparate treatment?
Disparate treatment and disparate impact are two very different types of employment discrimination that use two very different tests to determine if illegal discrimination has occurred and if an employer may be liable for such discriminatory conduct. Having a better understanding of these terms and the potential liability they may impose on a business can help HR professionals and CEOs prevent expensive litigation.
How does a disparate impact case work?
Disparate impact cases work similarly to a seesaw in which one side has the burden to prove something and then this burden shifts to the other side . The plaintiff may make a prima facie case by showing his or her version of the story that, if correct, would require the fact finder to rule in the employee's favor. The employee shows that the employment policy has an adverse impact on him or her that is due to being part of a protected class. The employer then shows that there is a business necessity for the employment practice to be in place. The policy must have a direct link to the needs of the business. The employee can respond to this allegation by stating that there were alternatives available to the employer that would have had a lesser impact than the employment practice used. Such alternatives must have been able to meet the needs of the business to an equal degree.
How long has discrimination been outlawed?
Workplace discrimination has been outlawed on the federal level for more than 50 years. As such, the case law has paved the way for claimants to successfully establish their case if they have been discriminated against intentionally or unintentionally. Careful attention to employment policies and practices can avoid unnecessary and expensive litigation.
Can an employer be held liable for discrimination?
So long as a discriminatory intent was a motivating factor, the employer can be held liable for discrimination under the disparate treatment theory.
Why are employment decisions based on stereotypes unlawful?
37 As the Supreme Court has explained, “ [W]e are beyond the day when an employer could evaluate employees by assuming or insisting that they match the stereotype associated with their group.” 38 Thus, for example, employment decisions based on stereotypes about working mothers are unlawful because “the antidiscrimination laws entitle individuals to be evaluated as individuals rather than as members of groups having certain average characteristics.” 39
What are the retaliation provisions of the EEO?
The retaliation provisions under the EEO statutes protect individuals against any form of retaliation that would be reasonably likely to deter someone from engaging in protected activity. 88 Caregivers may be particularly vulnerable to unlawful retaliation because of the challenges they face in balancing work and family responsibilities. An action that would be likely to deter a working mother from filing a future EEOC complaint might be less likely to deter someone who does not have substantial caregiving responsibilities. As the Supreme Court noted in a 2006 decision, “A schedule change in an employee’s work schedule may make little difference to many workers, but may matter enormously to a young mother with school age children.” 89 Thus, the EEO statutes would prohibit such a retaliatory schedule change or any other act that would be reasonably likely to deter a working mother or other caregiver from engaging in protected activity.
What is the purpose of the EEO document?
PURPOSE: This document provides guidance regarding unlawful disparate treatment under the federal EEO laws of workers with caregiving responsibilities .
How do gender stereotypes affect caregivers?
In addition to leading to assumptions about how female employees might balance work and caregiving responsibilities, gender stereotypes of caregivers may more broadly affect perceptions of a worker’s general competence. 62 Once female workers have children, they may be perceived by employers as being less capable and skilled than their childless female counterparts or their male counterparts, regardless of whether the male employees have children. 63 These gender-based stereotypes may even place some working mothers in a “double bind,” in which they are simultaneously viewed by their employers as “bad mothers” for investing time and resources into their careers and “bad workers” for devoting time and attention to their families. 64 The double bind may be particularly acute for mothers or other female caregivers who work part time. Colleagues may view part-time working mothers as uncommitted to work while viewing full-time working mothers as inattentive mothers. 65 Men who work part time may encounter different, though equally harmful, stereotypes. 66
How to prevent harassment of caregivers?
Employers should take steps to prevent harassment directed at caregivers or pregnant workers from occurring in the workplace and to promptly correct any such conduct that does occur. In turn, employees who are subjected to such harassment should follow the employer’s harassment complaint process or otherwise notify the employer about the conduct, so that the employer can investigate the matter and take appropriate action. For more information on harassment claims generally, see EEOC Policy Guidance on Current Issues of Sexual Harassment (Mar. 19, 1990) at https://www.eeoc.gov/policy/docs/currentissues.html, and Enforcement Guidance: Vicarious Employer Liability for Unlawful Harassment by Supervisors (June 19, 1999) at https://www.eeoc.gov/policy/docs/harassment.html.
Why was Emily denied tenure?
Emily, an assistant professor of mathematics at the University for the past seven years, files a charge alleging that she was denied tenure based on her sex. Emily applied for tenure after she returned from six months of leave to care for her father. The University’s flexible work program allowed employees to take leave for a year without penalty. Before taking leave, Emily had always received excellent performance reviews and had published three highly regarded books in her field. After returning from leave, however, Emily believed she was held to a higher standard of review than her colleagues who were not caregivers or had not taken advantage of the leave policies, as reflected in the lower performance evaluations that she received from the Dean of her department after returning from leave. Emily applied for tenure, but the promotion was denied by the Dean, who had a history of criticizing female faculty members who took time off from their careers and was heard commenting that “she’s just like the other women who think they can come and go as they please to take care of their families.”
How does work family conflict affect women?
The impact of work-family conflicts also extends to professional workers, contributing to the maternal wall or “glass ceiling” that prevents many women from advancing in their careers. As a recent EEOC report reflects, even though women constitute about half of the labor force, they are a much smaller proportion of managers and officials. 28 The disparity is greatest at the highest levels in the business world, with women accounting for only 1.4% of Fortune 500 CEOs. 29 Thus, one of the recommendations made by the federal Glass Ceiling Commission in 1995 was for organizations to adopt policies that allow workers to balance work and family responsibilities throughout their careers. 30
How to prove prima facie discrimination?
The charging party can establish a prima facie case of discrimination by proving that past discrimination occurred and that it is being continued by the present operation of a neutral employment system. The past discrimination could have occurred before or after the effective date of Title VII. The neutral employment system will generally be a wage, pension, or seniority system, although it can be any policy or practice that operates to freeze the effects of prior discriminatory practices.
What is a no cause letter of determination?
If a seniority system was instituted prior to the effective date of Title VII, and there is no evidence showing discriminatory intent in the creation or maintenance of the system, charges based on perpetuation of past discrimination by the seniority system should be resolved with a no cause Letter of Determination.
Why is statistical evidence important?
Statistical evidence can be relevant in proving an individual case of disparate treatment because it is evidence of the presence of a discriminatory motive. See Teamsters, supra . For example, charging party's individual allegation that she was not hired for a secretarial position because of her race, (Black), is buttressed if there is statistical evidence indicating that respondent employs no Black secretaries despite their availability in the SMSA where respondent is located, and in spite of the fact that many have applied for positions with respondent. The statistical data creates an inference that respondent refused to hire Blacks as secretaries and that charging party's rejection was pursuant to this practice. It is evidence of a discriminatory motive. It is important to remember, however, that statistics alone will not normally prove an individual case of disparate treatment. Bolten v. Murray Envelope Co. , supra.
Why does a respondent argue that a charging party was qualified for a position in question but it selected another?
In some instances, a respondent will concede that a charging party was qualified for a position in question but argue that it selected another person because the selectee was better qualified. This defense must be examined carefully. Respondent must state precisely the way (s) in which the selectee was more qualified than the charging party. This defense may be a pretext for discrimination.
What is discrimination in the Civil Rights Act?
It can occur when an employer or other person subject to the Act intentionally excludes individuals from an employment opportunity on the basis of race, color, religion, sex, or national origin. Evidence of exclusion need not be embodied in respondent's employment policies or practices however. Whenever similarly situated individuals of a different race, sex, religion, or national origin group are accorded disparate treatment in the context of a similar employment situation, it is reasonable to infer, absent other evidence, that discrimination has occurred. The presence of a discriminatory motive can be inferred from the fact that there were differences in treatment. International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 14 EPD ¶ 7579 (1977).
What is the adverse impact theory of discrimination?
Discrimination can result from neutral employment policies and practices which are applied evenhandedly to all employees and applicants, but which have the effect of disproportionately excluding women and/or minorities. Dothard v. Rawlinson, 433 U.S. 321, 14 EPD ¶ 7633 (1977); Griggs v. Duke Power Co., 401 U.S. 424, 3 EPD ¶ 8137 (1971). This is the adverse impact theory of discrimination. Once adverse impact is established, the respondent must justify the continued use of the procedure (s) causing the adverse impact as a business necessity.
What is Section 704A?
Section 704 (a) of Title VII prohibits discrimination against individuals because they have filed a Title VII charge, have participated in a Title VII investigation, or have otherwise opposed Title VII discrimination. Commission Decision No. 72-1883, CCH EEOC Decisions (1973) ¶ 6375. Section 704 (a) discrimination is discussed in detail in § 614 of the Compliance Manual.
What is disparate impact analysis?
Accurate disparate impact analyses begin with identifying the policy or practice that allegedly caused the disparate harm. Inclusive Communities, 135 S. Ct. at 2523 (“a disparate-impact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a defendant’s policy or policies causing that disparity”). Although plaintiffs’ claims succeed or fail based on whether they have established adversity/harm, significant disparity, and causation, identifying the policy at issue in forms the evaluation of the evidence put forth at these three stages.
How to quantify disparity?
Often a disparity can be quantified using statistical evidence. See Darensburg, 636 F.3d at 519 (explaining that appropriate statistical evidence can provide a “reliable indicator of a disparate impact” (citing New York Urban League, 71 F.3d at 1038)). And the majority of contemporary disparate impact claims involve comparative evidence based on statistical analysis. It is important to remember, however, that even where statistical evidence is available, circumstantial evidence can be a critical supplement. As the Supreme Court has cautioned, the usefulness of statistics “depends on all of the surrounding facts and circumstances.” Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 340 (1977).
Why are federal agencies uniquely qualified to provide such guidance?
Federal funding agencies are uniquely qualified to provide such guidance because of their expert knowledge of their funded programs. Courts normally defer to agency guidance in evaluating specific types of disparate impact. See, e.g., S. Camden Citizens in Action, 145 F. Supp. 2d 446, 496 (D.N.J. 2001) (“In the absence of guiding legal precedent on the question of what constitutes a ‘substantial legitimate justification’ or a ‘legitimate nondiscriminatory reason’ in the context of this case, I shall look to EPA regulations and practice.”). As in all aspects of Title VI investigation, agencies should consider not only the recipient’s perspective, but also the views of the affected community in assessing whether benefits to the community outweigh the policy’s disproportionate adverse effects. See, e.g., EPA Investigations Guidance, 65 Fed. Reg. at 39,683.
Why do agencies need demographic data?
The ready availability of demographic data assists agencies in prioritizing complaint investigations, selecting recipients for compliance reviews, and conducting targeted outreach . Agencies should use this authority to ensure effective enforcement of their disparate impact regulations. Where a recipient does not fully cooperate with an agency’s request for information, and compliance cannot be achieved voluntarily, the agency may refer the matter to the Department of Justice for judicial enforcement. Agencies should consider consider establishing additional requirements for certain recipients to provide information routinely to assist in monitoring compliance with the Title VI disparate impact regulations.
How did the closure of schools affect Hispanic students?
Similarly, in a school closing case, the plaintiffs alleged that the closure and student transfers resulted in a discriminatory effect on Hispanic students by depriving them of the high quality education previously provided . The court found there was no adversity/harm, and thus declined to analyze disparity, because (1) the new schools had comparable facilities, (2) there was no evidence that the new schools would be overcrowded, (3) special education programs would continue at the new schools, and (4) the new schools had similarly high percentages of at-risk and minority students. Villanueva v. Carere, 85 F.3d 481, 487 (10th Cir. 1996). [14]
How to ensure compliance with Title VI?
Agencies should remember that recipients may be able to ensure compliance with Title VI by mitigating any adverse harm that may affect the protected group. Informal resolution efforts often involve identification of mitigation efforts which, if applied, would result in compliance with Title VI by reducing or eliminating adversity/harm.
What should agencies inquire about?
Agencies should inquire about the challenged action’s negative effect—looking at who is impacted and where the impact occurs—in order to identify the legally relevant policy or practice. Agencies should remember that the answer to this question may also come from the disparity/discriminatory effect analysis discussed below.
What is the impact ratio of a 4/5th rule?
The impact ratio (.5) is less than .8 which is evidence that, based on the 4/5ths rule, there is adverse impact.
Which is more powerful, impact ratio or significance?
Impact ratio is much more powerful than significance test, but at the expense of Type I error Tests of statistical significance can control Type I error
What is the effect size of a difference?
Effect size (i.e., impact ratio) provides best estimate of magnitude of the difference Confidence interval (CI) communicates degree of precision (i.e., sampling error) in that estimate
Is CI 1.0 statistically significant?
If CI includes 1.0, degree of AI is not statistically significant Problem: still only accurate when expected frequency of minority hires > 18 and IR > .2
Can you use statistical test for 80%?
80% test Only use statistical test if violation of 80% test
Is impact ratio a characteristic of the test that accompanies it from place to place?
Uniform Guidelines suggest that impact ratio is a characteristic of the test that accompanies it from place to place. However, it is more reasonable to expect
Is a greater difference in selection rate a negative impact?
Greater differences in selection rate may not constitute adverse impact where the differences are based on small numbers and are not statistically significant, or where special recruiting or other programs cause the pool of minority or female candidates to be atypical of the normal pool of applicants from that group….
Anti-Discrimination Laws
- It may seem easy to establish disparate treatment: simply request a raft of disciplinary records and search for employees who violated the same rule or standard as the grievant but were given lesser punishment. Yet unions who pursue such cases often find their claims rejected because the union is unable to counter the employer’s contention that the...
Disparate Treatment
Legal Test For Disparate Treatment
Disparate Impact
- Federal law prohibits employment discriminationon the basis of race, color, national origin, religion, sex, disability, sexual orientation, genetic information, or age if age 40 or older.
Legal Test For Disparate Impact
- Disparate treatment is often referred to as intentional employment discrimination. It occurs when a legally-protected class of people are singled out due to such illegal reasons as their race, sexual orientation, ethnicity, age if over 40, disability, or sex. The employer may favor some employees or disfavor other employees due to such characteristics. This type of discrimination often occurs b…