What is Disparate Treatment?

Disparate Treatment involves direct discriminatory treatment of an employee by the employer (or the employer's representative). The plaintiff must convince the court that the employer intentionally discriminated against the plaintiff. The plaintiff may demonstrate intent by showing that discrimination is a substantial or motivating factor for the employer's action or decision. If the employee can make this showing, the employer will be liable even if other factors (such as customer preference in interacting with individuals of a specific race, gender, religion, etc.) also contributed to or motivated the conduct or decision.

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What must a plaintiff demonstrate to the court to win a lawsuit under Title VII?

To make an actionable claim under Title VII, the affected employee must demonstrate that the employer is covered by Title VII and that actions taken (or inaction) by the employer likely had a discriminatory effect or result. 

As previously discussed, Title VII prohibits discrimination based on race, color, religion, sex or national origin. Courts interpreting these provisions include pregnancy, childbirth or related medical conditions under the aegis of sex discrimination. 

The employee must then demonstrate discrimination with regard to hiring, discharging, compensating, or concerning the terms, conditions, and privileges of employment. 

Note: Remember, the defendant may still be able to show that discriminating against one protected class of individual in favor of another was done based upon a bona fide occupational qualification. No BFOQ exists for race-based discrimination.

Discussion: What do you think constitutes discriminatory intent with regard to an employment decision? Can you think of a situation where an employer's action or decision may be influenced by the protected characteristics of an employee or applicant but does not constitute discrimination? What level of consideration of a protected characteristic constitutes a substantial motivating factor?

Practice Question: Juan is an employee of ABC Corp. He believes that his current manager treats him unfairly because of his Hispanic heritage. When a position comes open in his company for promotion, Juan applies for the position. Juan's manager hires another Caucasian employee with less seniority and fewer credentials for the position. He believes that he was discriminated against by not being selected. If Juan decides to bring a discrimination action against ABC Corp, what will he have to show in order to prevail?