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West Coast Employment Lawyers is open 24/7 and fully operational during the COVID-19 quarantine. We are available to serve all of our personal injury clients, as well as potential new clients. Please feel free to contact us anytime.

Top Ranked

Employment Law Firm in California

Top Ranked

Employment Law Firm in California

What Is Disparate Treatment Discrimination And How To Prove It?


Disparate treatment is a form of illegal discrimination in the workplace. An employee who makes a disparate treatment claim is alleging that he or she was treated differently than other employees in similar situations because of his or her race. Disparate treatment is similar to racial discrimination, but there are significant differences that become apparent after considering a few examples.

An employer can be guilty of disparate treatment discrimination if it only promotes white employees to supervisory duties or if it only requires job applicants of a certain race to submit to pre-employment drug tests. These examples are clear cut, but there are more nuanced examples discussed below. 

Basically, any employer who discriminates based on the physical characteristics associated with a given race — this includes hair texture or color, skin color, and facial features — is guilty of disparate treatment discrimination.

What Is Disparate Treatment Discrimination?

The difference between racial discrimination and disparate treatment is subtle. In disparate treatment lawsuits, an employee is not claiming that he or she was deliberately singled out by an employer because of his or her race. In disparate treatment cases, an employee is making a claim that an employer’s seemingly neutral policy, practice, or rule is having a negative impact on members of a certain race.

Let’s consider some examples which show the difference between racial discrimination and disparate treatment. For example, a minimum height requirement may have the adverse effect of screening out a disproportionate number of otherwise qualified Hispanic American and Asian American job candidates. Or a company policy that bans hiring applicants with an arrest record may disproportionately affect African American and Hispanic American men.  

Then there is of course the employer’s counter argument. An employer can defend its height requirement policy if it has a legitimate and job related reason for it. A valid reason would be when an employee must actually be a certain height to safely operate a piece of machinery. On the other hand, an employer would have a much harder time justifying a height requirement for a desk job.

Let’s consider an example which includes various factors common to many disparate treatment cases. Jimmy used to work in a call center for a medical billing company in California. Jimmy was recently fired from his job, and believes he lost his job because of his Hispanic American background. Jimmy’s former employer claims that his race had nothing to do with the decision, and that he was fired because four customers complained about him in the previous quarter.

In order to strengthen his argument, Jimmy needs to show that other employees who also received four complaints in the same time frame were not fired, and that those other employees were not of Hispanic American descent. As a counterargument, if Jimmy’s employer can prove that all employees who received four complaints in a quarter were also fired, and that all these employees, regardless of race, were subject to the same rule, then that employer’s defense will be much harder to argue against.

Further, if Jimmy was also subject to offensive comments about Hispanic Americans, his case suddenly appears much stronger. But if no such derogatory comments were ever spoken, and if the employer can prove it has a long history of hiring and supporting Hispanic American workers, Jimmy may not have a strong disparate treatment case after all.

How Do You Prove a Disparate Treatment Claim?

In order to successfully prove a disparate treatment claim, an employee needs to demonstrate enough evidence for a judge or jury to infer that discrimination actually took place. This is known as presenting a “prima facie” case

The Latin phrase “prima facie” can be translated as “based on the first impression”. In other words, an employee’s evidence must give an initial appearance of discrimination for it to move forward.

If an employee presents a prima facie case, his or her employer must then present a valid, nondiscriminatory reason for its decision. After an employer responds with their reasoning, an employee must demonstrate that the employer’s reason is not true, but is just an excuse for its true motive — which is racial discrimination.

Prima Facie

What evidence does an employee need to prove a prima facie case of disparate treatment? As in racial discrimination cases, smoking gun evidence in disparate treatment cases will be hard to come by. Obvious examples of smoking gun evidence include a nightclub owner who only hires attractive female bartenders, or a department store manager who openly refuses to promote African Americans. Both of these examples would provide more than enough evidence of discrimination.

But because this type of conclusive evidence is rare, an employee must make a prima facie case using circumstantial evidence. Below is a four part test for an employee’s prima facie case of disparate treatment discrimination:

  1. An employee already met or exceeded qualifications for a job benefit. This employee was qualified for and applied for an open position, or this employee already held a position that he or she was performing at or above expectations.
  2. An employee is a member of a protected class (the employee is female, African American, over the age of 40, etc.).
  3. An employee did not receive the job benefit, meaning they were not hired, were fired, or simply were not promoted.
  4. A desired benefit is still available, or was instead given to a person not in the employee’s protected class.

What About An Employer’s Valid, Nondiscriminatory Reason?

If an employee proves he or she has a prima facie case, an employer must respond by producing a valid, nondiscriminatory reason for the decision it made. The Supreme Court has held that the burden of proving discrimination is on the employee. The employer does not need to prove that it did not discriminate. In other words, an employer must only present some evidence that justifies its stated reasoning.

An employer’s reasoning usually revolves around an employee’s job qualifications. An employer can argue that an employee just wasn’t qualified enough for a job, or that he or she had performance or conduct problems that justified their termination. An employer can also reference factors that are completely unrelated to the employee. A valid example could include a slow quarter which justified the need for inevitable layoffs.

How Does An Employee Prove Pretext?

An employer has stated its valid reason for its decision, and the employee must now prove that it’s actually an excuse for discrimination. This means that an employee must provide evidence that not only brings the employer’s reasoning into doubt, but which gives the jury an opportunity to conclude that an employer was truly motivated by discrimination.

  • The rules are inconsistently applied. When an employer does not consistently follow its own valid, nondiscriminatory reasons for the job decisions it makes, that could indicate pretext. For example, an employee is passed over for a promotion, and he or she was told it was because they hadn’t yet completed their MBA. If the employee who did receive the promotion hadn’t completed their MBA either, the employer’s decision suddenly looks very suspicious.
  • Constantly changing justifications. An employer who constantly offers different reasons at different times for the decisions it takes might be enough to justify pretext. For example, an employer informs an employee that his or her job is being cut because the company is restructuring itself to fit a new business model. However, the employer later claims in front of a jury that the employee was fired because of poor job performance.
  • Inappropriate remarks by the decision makers. If an employer was known to make sexist comments and then instigated a layoff in which the majority of those employees who lost their jobs were women, that could provide pretext.

What West Coast Employment Lawyers Can Do For You?

If you have made up your mind to take action, it is important to work with an attorney that specializes in cases like yours. The racial discrimination lawyers at West Coast Employment Lawyers have extensive experience handling racial discrimination cases. We will work tirelessly to gather the facts, find and interview eyewitnesses, hire experts, and fight for your rights.

We work on a contingency basis, which means we only get attorney’s fees if we are able to recover for you. Our legal team is available 24/7 and will take care of your case from start to finish. For a free no-obligation consultation with a racial discrimination attorney in California, contact our office at 1-800-247-9235.


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