1-F | WHAT IS DISPARATE TREATMENT AND HOW DO YOU PROVE IT IN AN INDIVIDUAL CASE?

Disparate treatment is the different (and typically less favorable) treatment of an individual because of his/her protected class. Teamsters v. U.S., 431 U.S. 324, 335 n.1 (citation omitted) (1977). The key issue is whether the employer’s actions were motivated by discrimination. The plaintiff employee may prove the employer’s discriminatory intent by direct evidence or by circumstantial evidence.

Direct evidence is evidence that directly proves discrimination. For example, a statement by the decision maker in the decisional process that he/she is terminating the employee because of the employee’s religion would be direct evidence of discrimination. “[S]tray remarks[,]” which are “statements by nondecisionmakers” and “statements by decision makers unrelated to the decisional process itself,” do not constitute direct evidence. Hopkins v. Price Waterhouse, 490 U.S. 228, 277 (1989).

Circumstantial evidence is evidence that, although not direct, would permit the factfinder to “infer” that discrimination has occurred. An example of circumstantial evidence would be proof that qualified African Americans have applied, but that no qualified African Americans have been hired. Although there is no rigid test for proving discrimination (see St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 519 (1993) (citation omitted) (“The McDonnell Douglas methodology was ‘never intended to be rigid, mechanized, or ritualistic.’”)), the McDonnell Douglas framework is the generally-accepted approach to evaluate circumstantial evidence. In a discriminatory discharge case, that framework first requires an employee to prove a prima facie case by showing that he or she was:

a) a member of a protected class;

b) qualified for the position;

c) discharged from the position; and

d) replaced by a non-member of a protected class.

Id. at 506.

If the employee meets this burden, then the employer has a burden of producing evidence of a legitimate nondiscriminatory business reason for its decision. Id. at 506-07. Once the employer proffers such a reason, the presumption of discrimination “simply drops out of the picture,” and the employee must then show that the employer’s proffered reason is a pretext for discrimination. Id. at 511 & 515. As the Hicks Court has indicated, “a reason cannot be proved to be a ‘pretext for discrimination’ unless it is shown both that the reason was false, and that discrimination was the real reason.” Id. at 516 (emphasis in original). Further, depending on the strength of the evidence, “rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.” Id. at 511 (emphasis in original). American Bar Association // Section of Labor and Employment Law
Equal Employment Opportunity Committee // EEO Law Basics // Spring 2006