Comparative Evidence of Disparate Treatment Disparate treatment occurs when a lender treats a credit applicant differently on the basis of one of the prohibited factors. Showing that, beyond the differ ence in treatment, the treatment was motivated by prejudice or by conscious intention to discriminate against a person is not required.
What is example of disparate treatment?
Mar 11, 2021 · Let's talk about comparative evidence of disparate treatment. This occurs through a file comparison of a protected class and a control group applicant. Essentially, what is happening here is your examiners will come in and they'll request files. What they are going to be requesting is a stack of denials and a stack of approvals. That's how this works.
How do you prove a disparate impact case?
Jan 28, 2019 · 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 are the elements of a disparate impact claim?
EEO: Disparate Treatment Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence.
What is overt disparate treatment?
What is disparate treatment by comparative evidence? 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 an example of disparate treatment by comparative evidence?
Overt evidence of disparate treatment exists when a lender openly discriminates on a prohibited basis. Example: A lender offers a credit card with a limit of up to $750 for applicants age 21-30 and $1,500 for applicants over 30. This policy violates the ECOA's prohibition on discrimination on the basis of age.
What are 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.Oct 19, 2020
What are some examples of disparate impact?
A common and simple example of “disparate impact” discrimination is when an employer has a policy that it will only hire individuals who are a certain minimum height or who can lift a certain minimum weight. Courts have found height restrictions disproportionately impact women and certain races.Jul 14, 2020
What is disparate and disparate treatment?
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.
Which of the following is a type of disparate treatment?
A form of intentional discrimination in which an employee is hired, fired, denied a promotion, or the like, based on membership in a protected class (as listed in the CRA (Civil Rights Act), such as race, color, religion, sex, or national origin).
What is disparate treatment in human resources?
Disparate treatment, also known as adverse treatment, occurs when an employer treats an employee unfairly compared to other employees based on the person's personal characteristics, especially with regard to protected classes.
What is evidence of disparate impact?
The most compelling evidence of disparate impact is proof that an employment practice selects members of a protected class in a proportion smaller than their percentage in the pool of actual applicants, or, in promotion and benefit cases, in a proportion smaller than in the actual pool of eligible employees.
How do you prove 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.
Which of the following statements is a difference between disparate treatment and disparate impact?
Disparate treatment is a form of illegal discrimination, whereas disparate impact is a form of legal discrimination.
What is needed to prove disparate treatment?
To support a disparate treatment claim, you need to establish four elements:The individual is a member of a protected class;The employer knows of the individual's protected class;A harmful act occurred; and.Other similarly situated individuals were treated more favorably or not subjected to the same treatment.Feb 16, 2021
What does disparate treatment require?
What Is Disparate Treatment? An employee making a disparate treatment claim must show, well, disparate treatment. In other words, the employee must show that he or she was treated differently than other employees who don't share the same protected characteristic.
What is disparate impact treatment?
Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses "a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin." An employer may defend against liability by demonstrating that the ...
What is disparate treatment?
Disparate treatment, also known as adverse treatment, occurs when an employer treats an employee unfairly compared to other employees based on their personal characteristics, especially in regard to protected classes. Employees make disparate treatment claims when they believe that an employer has discriminated or retaliated against them.
How to address workplace discrimination?
Provide employees with clear, safe and confidential ways to discuss their concerns about workplace discrimination. Make sure everyone is aware of the proper channels for reporting concerns. Having a culture of transparency and respect allows employees to advocate for themselves and prevent future incidents.
What is wrongful termination?
When a business fires an employee based on discriminatory reasons, this is disparate treatment. Employees who make a wrongful termination claim often have to prove that they were meeting workplace expectations when they were fired or that their employer had unfair standards for them compared to others.
What is the purpose of clear policies in the employee handbook?
Having clear policies in place allows you to have a benchmark that you can use for comparing staff behaviors.
Why is diversity important in business?
Making diversity a core value in your business is the best way to avoid disparate treatment in the workplace. Having people of different races, genders, religions and abilities in leadership decisions helps you build policies that encourage diversity.
What is direct evidence?
Under the direct method, a plaintiff attempts to establish that membership in the protected class was a motivating factor in the adverse job action. Plaintiff may offer direct evidence, such as that the defendant admitted that it was motivated by discriminatory intent or that it acted pursuant to a policy that is discriminatory on its face. In most cases, direct evidence of discrimination is not available, given that most employers do not openly admit that they discriminate. Facially discriminatory policies are only permissible if gender, national origin, or religion is a BFOQ for the position in question, as discussed above. Race or color may never be a BFOQ.
What is the burden shifting formula in McDonnell Douglas?
In the majority of cases, the plaintiff lacks direct evidence of discrimination and must prove discriminatory intent indirectly by inference. The Supreme Court has created one structure for analyzing these types of cases, commonly known as the McDonnell Douglas burden-shifting formula, which it first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The analysis is as follows: (1) the plaintiff must establish a prima facie case of discrimination; (2) the employer must then articulate, through admissible evidence, a legitimate, nondiscriminatory reason for its actions; and (3) in order to prevail, the plaintiff must prove that the employer's stated reason is a pretext to hide discrimination. McDonnell Douglas, 411 U. S. at 802-04; Burdine, 450 U.S. at 252-56. In the Seventh Circuit, courts generally analyze disparate treatment cases using this method, although attorneys may also use the direct method described above.
What is EEO in employment law?
EEO: Disparate Treatment. Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. The central issue is whether the employer's actions were motivated by discriminatory intent, which may be proved by either direct or circumstantial evidence.
Is race a BFOQ?
Facially discriminatory policies are only permissible if gender, national origin, or religion is a BFOQ for the position in question, as discussed above. Race or color may never be a BFOQ. A plaintiff may also proceed under the direct method by offering any of the following three types of circumstantial evidence.
What is disparate treatment?
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 the Rehabilitation Act of 1973?
The Commission enforces the Rehabilitation Act of 1973, as amended, with respect to Federal employment. Federal departments and agencies in the Executive Branch are required to make reasonable accommodation for handicapped individuals unless to do so would create an undue hardship. 29 CFR § 1613.704.
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 does the respondent present in an EOS case?
In this situation, the respondent presents evidence which indicates that charging party's allegations are factually incorrect and evidence of what actually occurred. Respondent's version of the facts might dispel any inference of discrimination which had been raised by charging party. It is important to remember that the EOS must attempt to determine whether there is evidence that supports respondent's factual allegations.
What does EOS do after a charge?
After the respondent has submitted its position and evidence in support of that position, the EOS must always give the charging party the opportunity to respond to respondent's case. The charging party may have evidence which contradicts the evidence that respondent has submitted to support its position or be able to identify witnesses who contradict respondent's position. Although the EOS must always solicit a response from the charging party, (s)he must independently examine respondent's evidence to determine whether it is a pretext for discrimination.
What is the meaning of "justification by business necessity"?
424,3 EPD ¶ 8137 (1971), the Supreme Court announced the principle that employment policies and practices which have an adverse impact on minorities and women and are not justified by business necessity constitute illegal discrimination under Title VII. Justifying an employment policy or practice by business necessity involves a showing that the policy or practice is related to performance on the job. This means, for example, showing that a selection procedure has been validated.
REBUTTAL
What did the agency say was the reason for its treatment of complainant and the compared employees/applicants? How did the agency respond to other evidence, if any, of discrimination?
PRETEXT
Is there direct or circumstantial evidence that the agency's reason for its treatment of complainant is pretextual?
PRIMA FACIE CASE
1) Had the complainant previously engaged in protected activity or opposed unlawful discrimination?
PRIMA FACIE CASE -- Where Complainant Alleges a Failure to Provide a Reasonable Accommodation
1) Does complainant have a physical or mental impairment (for example, deafness; blindness; partially or completely missing limbs or mobility impairments requiring the use of a wheel chair; intellectual disability (formerly termed mental retardation); autism; cerebral palsy; major depressive disorder; bipolar disorder; post-traumatic stress disorder; obsessive compulsive disorder; schizophrenia; cancer; diabetes; epilepsy; HIV infection; multiple sclerosis; and muscular dystrophy) that is readily observable or where there is medical documentation of the impairment?.
PRIMA FACIE CASE -- Where Complainant Alleges Disparate Treatment
1) Does complainant have a physical or mental impairment (for example, deafness; blindness; partially or completely missing limbs or mobility impairments requiring the use of a wheel chair; intellectual disability (formerly termed mental retardation); autism; cerebral palsy; major depressive disorder; bipolar disorder; post-traumatic stress disorder; obsessive compulsive disorder; schizophrenia; cancer; diabetes; epilepsy; HIV infection; multiple sclerosis; and muscular dystrophy) that is readily observable or where there is medical documentation of the impairment?.
DUTY TO ACCOMMODATE -- RELIGIOUS COMPENSATORY TIME
To allow employees to work additional hours (overtime, compensatory time) to make up for the time required by their personal religious belief (Pub. L. No. 95-390, 5 U.S.C. § 5550a, "Compensatory Time Off for Religious Observances").
Understanding Comparative Evidence of Disparate Treatment
- Comparative evidence of disparate treatment occurs through an analysis of loan files where the result is that a protected class received less favorable terms than a control group. When an auditor or examiner is looking for this type of discrimination, they will will conduct a test called a “comparative analysis.” In simple terms, a comparative anal...
The Problem with Lender Discretion
- Most often, comparative evidence of disparate treatment is not intentional discrimination, but is the unintentional result of lender discretion. Discretion occurs when a bank allows a lender to use their own personal judgement during the underwriting process to determine whether or not to make a loan to an applicant. In my opinion, discretion in underwriting is the single biggest contri…
Discretion in Large and Small Institutions
- Large banks have mitigated their risk of comparative evidence of disparate treatment by eliminating lender discretion. As large institutions have hundreds or thousands of lenders making credit decisions, the only way to manage potential discrimination as a result of comparative evidence of disparate treatment is to prohibit lender discretion. Therefore, most large banks hav…
Assessing Risk of Comparative Evidence of Disparate Treatment
- The best way to assess fair lending risk by comparative analysis is to identify how much discretion a lender has in the underwriting process. If a lender doesn’t have any discretion - meaning that all applications from the financial institution are evaluated the exact same way every time, such as is the case with some automated underwriting solutions, the result is that th…
What Is Disparate Treatment?
How Disparate Treatment Impacts A Business
Examples of Disparate Treatment
Disparate Treatment vs. Disparate Impact
Frequently Asked Questions About Disparate Treatment
- What is comparative disparate treatment?
Comparative disparate treatment happens when a business has a history of denying service to people who belong to a certain group. An example would be a nail salon that refuses to give spa services to disabled people. - What is overt disparate treatment?
Overt disparate treatment occurs when someone obviously and clearly judges or punishes an employee based on their gender, race, religion or another personal characteristic. If a manager told a female employee that she wouldn’t be considered for a promotion because men are bette…