Disparate treatment

Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic (e.g. race or gender) under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others. Disparate treatment is one kind of unlawful discrimination in US labor law. In the United States, it means unequal behavior toward someone because of a protected characteristic (e.g. race or gender) under Title VII of the United States Civil Rights Act. This contrasts with disparate impact, where an employer applies a neutral rule that treats everyone equally in form, but has a disadvantageous effect on some people of a protected characteristic compared to others. Title VII prohibits employers from treating applicants or employees differently because of their membership in a protected class. A disparate treatment violation is made out when an individual of a protected group is shown to have been singled out and treated less favorably than others similarly situated on the basis of an impermissible criterion under Title VII. The issue is whether the employer's actions were motivated by discriminatory intent. Discriminatory intent can either be shown by direct evidence, or through indirect or circumstantial evidence. Under Title VII, a disparate-treatment plaintiff must establish 'that the defendant had a discriminatory intent or motive' for taking a job-related action. This doctrine was read into the act in Griggs v. Duke Power Co., which interpreted the Act to prohibit, in some cases, employers' facially neutral practices that, in fact, are 'discriminatory in operation.' The Griggs Court stated that the 'touchstone' for disparate-impact liability is the lack of 'business necessity': 'If an employment practice which operates to exclude cannot be shown to be related to job performance, the practice is prohibited.' If an employer met its burden by showing that its practice was job-related, the plaintiff was required to show a legitimate alternative that would have resulted in less discrimination. Twenty years after Griggs, the Civil Rights Act of 1991 was enacted. The Act included a provision codifying the prohibition on disparate-impact discrimination. Under the disparate-impact statute, a plaintiff establishes a prima facie violation by showing that an employer uses 'a particular employment practice that causes a disparate impact on the basis of race, color, religion, sex, or national origin.' An employer may defend against liability by demonstrating that the practice is 'job related for the position in question and consistent with business necessity.' Even if the employer meets that burden, however, a plaintiff may still succeed by showing that the employer refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer's legitimate needs.