Disparate treatment is defined as treating a person differently than others. This discriminatory treatment is owing to one of many factors, called protected factors. Such treatment is intentional, and this theory is defined under theories of discrimination in Title VII of the Civil Rights Act of United States.
An example of disparate treatment is an employer allowing all the employees of his department to enjoy a particular perk but refraining a single individual from utilising the same benefit.
As per Title VII, employers are prohibited from treating there employees or job applicants differently owing to the fact that they belong to a protected class. These impermissible criterion as defined under the Act are listed below:
• If the individual under consideration is of 40 years of more.
• Any discriminatory behaviour with respect to a person’s caste, creed or colour.
• People belonging to a different nation, or carrying characteristics of a particular region (race), cannot be discriminated against.
• Religion: all aspects of religious beliefs, rituals and observations have to be held sincerely.
• Gender: No sexual orientation or gender is granted protected class under Title VII of the Civil Rights Act, 1964.
Disparate treatment should not be confused with ‘disparate impact’ or ‘adverse impact’ as these terms are not the same. It is often a result of employer’s past experiences or biases towards a particular group. However, such treatment could also be an outcome of the employer trying to protect a group’s interests. The term ‘adverse impact’ is used for discriminatory behaviour that could be unintentional, and it relates to a particular protected group, rather than one individual.
Disparate treatment becomes an issue if the employer’s actions are proven to carry discriminatory intent. The proof could be either direct or indirect evidence. The plaintiff can establish a ‘prima facie case’ if there is direct evidence that the employer displayed discriminatory behaviour either orally or in written form. The McDonnell-Douglas test was established in the courts to assess if discriminatory intent is present if obvious evidence is otherwise not found.