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
Updated to incorporate discrimination protections related to domestic violence, a sexual offense or stalking, effective April 11, 2019.
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HR guidance on legal issues relating to disparate treatment discrimination in the workplace. How to avoid treating protected employees differently.