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
In-depth review of the spectrum of District of Columbia employment law requirements HR must follow with respect to EEO discrimination.
When an employee announces her pregnancy, a prudent employer should proceed cautiously because a bumpy road lies ahead as legislators and policymakers at the state and federal level push for greater protection for pregnant employees. In fact, some states have already passed legislation that goes beyond federal requirements
Arizona employers take note - the Phoenix City Council has passed a measure prohibiting employers from discriminating against lesbian, gay and transgender individuals, as well as individuals with disabilities. The Ordinance G-5780 goes into effect on March 26, 2013. It applies to all employers within Phoenix city limits with at least one worker.
Because the trucking industry is a male-dominated industry in which women remain a minority, transportation employers have frequently encountered sex harassment and sex discrimination lawsuits. Although the Equal Employment Opportunity Commission's (EEOC's) class action sexual harassment claim against CRST Van Expedited, one of the largest interstate trucking companies, failed to take flight, the case and ensuing settlement provide employers with valuable insight into what the EEOC may build a case on.
In Harris v. City of Santa Monica, the California Supreme Court considered a mixed motive discrimination case in which an employer had both lawful and unlawful reasons for terminating an employee. The court ruled that the employer may be held liable if the employee can show that discrimination was a substantial factor motivating an adverse employment action; however, damages may be limited if the employer demonstrates that it would have made the same decision absent the discrimination.
The transportation and trucking industry - which has traditionally employed mostly white males - has long been hit with discrimination claims based on race, sex, disability and other protected classes. A recent jury award demonstrates that companies will pay a hefty price for allowing a racially charged atmosphere and failing to respond to race discrimination and harassment complaints.
In a year in which equal pay looks to be hot issue, the Fair Pay Act (S. 168, H.R. 438) was reintroduced in Congress in both the House and the Senate by Rep. Eleanor Holmes Norton (D-DC) and Senator Tom Harkin (D-IA) respectively.
On January 28, 2013, the Equal Employment Opportunity Commission (EEOC) released fiscal year 2012 statistics on employment discrimination charges filed with the agency. Retaliation (37,836) was the most frequently filed claim, followed by race discrimination (33,512) and sex discrimination (30,356), which includes sexual harassment and pregnancy discrimination. Retaliation charges remain a top concern for employers and have since 2010, accounting for 38.1% of all charges in 2012.
The 6th Circuit Court of Appeals has held that an employer can hold supervisors and managers to higher standards of conduct than rank-and-file employees.
Employers should be aware that Virginia, North Dakota and Nebraska recently introduced legislation that would make sexual orientation a protected class.
HR guidance on legal issues relating to disparate treatment discrimination in the workplace. How to avoid treating protected employees differently.