Overview: Disparate treatment discrimination involves treating an individual unfavorably or making an employment decisions based on an individual's membership in a protected class, i.e., race, religion, etc. To defend against a claim of disparate treatment, an employer can argue that it acted in compliance with a workplace policy or that there was a legitimate nondiscriminatory reason for the adverse action which would have occurred even if the individual was not in a protected class. In turn, the employee or applicant may argue that the employer's reason was actually a cover-up and a disguise for a discriminatory motive.
Trends: Employers need to be aware that the EEOC is increasing its investigation of charges of individual disparate treatment discrimination in the workplace. Further, the EEOC has stated that disparate treatment in hiring remains a significant issue as employers are still discriminating against individuals based on race, sex, age, disability, and other protected characteristics.
Beth P. Zoller, J.D., Legal Editor
This briefing for supervisors examines the law and best practices for understanding, preventing and responding to unlawful retaliatory behavior in the workplace.
Updated to reflect additional protections for pregnant employees experiencing pre-birth complications.
In Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the United States Supreme Court considered whether an employer can be held liable for employment discrimination based upon the discriminatory animus of a lower level manager or supervisor who influenced, but did not make the final employment decision. This is known as the cat's paw theory of employer liability.
In Wal-Mart Stores, Inc. v. Dukes, the United Supreme Court addressed whether the Title VII sex discrimination claims of nearly 1.5 million former and current Wal-Mart employees could proceed as a nationwide class action.
In Raytheon Co. v. Hernandez, 540 U.S. 44 (2003) the Supreme Court was asked to decide whether an employer's refusal to rehire an employee who was previously terminated for violating workplace conduct rules, based on a positive drug test, violated the Americans with Disabilities Act of 1990 (ADA).
In Robinson v. Shell Oil Company, 519 U.S. 337 (1997) the United States Supreme Court addressed whether Title VII protects former employees from retaliation by prior employers.
In Arbaugh v. Y & H Corporation, 546 U.S. 500 (2006), the United States Supreme Court considered whether the federal courts have jurisdiction over a Title VII discrimination lawsuit brought against an employer with fewer than 15 employees.
HR guidance on legal issues relating to disparate treatment discrimination in the workplace. How to avoid treating protected employees differently.