What is Disparate Treatment? Discrimination in the Workplace

The U.S. Department of Labor prohibits discriminatory employment practices through the Equal Employment Opportunity Commission (EEOC). Disparate treatment is a legal term used by EEOC to describe intentional discrimination in the workplace. It occurs when employers treat individuals or groups of people in protected classes with less favorable employment conditions than those who are not. Federal, state, and many county and local laws ban disparate or unequal treatment. Disparate treatment can occur at any time throughout the process from:

• Where you choose to place job postings
• Through selection
• During hiring
• Throughout employment

Discrimination occurs when business leaders exclude an individual or category of workers based on their protected status or treat those workers or applicants differently or less favorably.

What are the protected classes?

At the federal level, there are 9 main classes of protected workers. These include applicants and employees based on:

1. Age
2. Color
3. Disability
4. Genetic information
5. National origin
6. Race
7. Religion
8. Sex
9. Veteran status

Many locales protect additional classes of workers and applicants. These can include marital status, criminal history, and more. Check with local and state Departments of Labor for detailed information. It’s a best practice to understand what the law is where you do business to assure your organization is in compliance.

Protecting the rights of protected classes

Disparate treatment occurs when a person or group of people in a protected class are denied employment privileges or rights that non-protected class workers enjoy. Worker’s rights begin at the recruitment process; individuals can have a valid claim of disparate treatment without even being hired. At every stage of employment, disparate treatment can occur.

Screening

Disparate treatment occurs when recruiters and hiring managers exclude applications and resumes from candidates they believe might be in a protected group. Not selecting a candidate based on name, perceived gender, school(s) attended, or the area they live is discriminatory if these variables suggest a protected class. Research verifies people with ‘distinctively black names,’ on average, are called in for an interview less frequently than applicants with less ethnic names. The data suggests disparate treatment begins long before the hiring process.

To combat this bias, many organizations moved recruitment screening to automated services. This type of service is programmed to disregard information that suggests an applicant’s:

• Gender
• Race
• Ethnicity

But AI is not perfect. Depending on the algorithm, there still may be bias in the selection process. One company found their technology-based selection on two areas of predicted job performance: the applicant’s name was Jared, or they played La Crosse in high school. The EEOC has warned employers that blaming the algorithm is not an affirmative defense against a charge of disparate treatment. It’s a best practice to periodically verify no bias in your selection process, whether it’s manual or computerized. Identify the chosen and excluded candidates from the interview process. Analyze whether those excluded are predominantly in a protected class. Based on your findings, you may need to make adjustments to the process.

Interviewing

Disparate treatment can occur during the interview process. Even when recruitment professionals work diligently to include a diverse applicant pool, hiring managers may consciously or subconsciously veer toward homogeny. It may be necessary to delve into their process for selection to determine whether disparate treatment is occurring. Look for trends and patterns: are there departments or managers who exclude equally or more qualified applicants in protected classes over those who are not?

Terms of employment

All employees must be subject to the same terms and conditions, whether they’re in a protected class or not. The EEOC evaluates the application of equitable treatment across all categories of workers when they investigate a claim of discrimination. They make their determination by looking at ‘similarly situated' employees. This includes every aspect of employment:

• Wages, commissions, and bonuses. Equal pay for equal work is just the beginning. Annual or periodic raises, bonuses, or increases must be consistent across all categories of workers. A worker's status must not impact the equitable distribution of merit-based raises.
• Shifts/hours. More or less favorable shifts may be another example of disparate treatment. Are employees of a protected class assigned less desirable shifts? Do employees earn fewer tips and commissions because they are scheduled when customer traffic is low? You’ll want to review scheduling practices to assure equity. Hours assigned may be another area of concern. Scheduling protected class employees for fewer hours or have less access to (desired) overtime hours experience disparate treatment. However, unless there are examples to the contrary, no disparate treatment occurs if the employee simply requests a particular shift or hours.
• Assignments. Assure equity by equitably delegating work assignments and perks across all groups. If protected employees are denied favorable assignments or less taxing work, it may be disparate treatment. Other examples include denying protected employees opportunities to travel for work, network with other departments or managers, leverage training, or have access to opportunities that could advance their careers.

Conditions of employment

• Performance evaluations. Evaluations of employees in protected classes must be consistent with those who are not. Evaluations can be highly subjective and can be cause for concern. Equally assess areas of strength and those that require development across all types of workers. Look for trends and patterns here. If some groups receive more favorable evaluations, disparate treatment may occur.
• Benefits. All class-eligible groups of workers must have access to health and wellness benefits, insurance, and retirement plans. Also, consider additional benefits, like sick, vacation, and personal time. The time off allotion decision process should not involve an employee’s status. Denying workers time off for holidays specific to a particular group or religion may also be disparate treatment. Inequity occurs when some groups are offered religious holidays, but others aren't given the same opportunity.

Inconsistent application of opportunities

• Promotion/demotion. For advancement or demotion, look at statistics to ensure no disparate treatment. Assess which group(s) of employees are typically promoted. Know at what stages they are in their career and to what type of advanced level they’re promoted. Check that protected and non-protected groups advance at the same pace. Look for patterns when evaluating demotions. Do you have some groups of workers more likely to be demoted than others? Performance evaluations justify the action for some managers, but they must be equitably assessed. Assure there is no disparate treatment by evaluating the entire process before a demotion decision is made.
• Transfers. Employees may ask for transfers — or they may be assigned by management — to other shifts, locations, or positions. Evaluate the transfer request approval rate for those allowed to make a move when comparing protected versus non-protected staff members. If the transfer is organizationally required, are the transfers equally distributed? Are the transfers generally to more or less desired positions? Assure the approval or requirement of all staff member transfers irrespective of their status.

Inequitable treatment

• Harassment. If employees in protected classes are subject to harassment based on their status, this is disparate treatment. Teasing, belittling, demeaning, bullying, or excluding workers is a form of harassment. The harassment can come from management or peers. It may be based on status — ‘women can’t get the job done as well as men.’ This behavior is an example of disparate treatment regardless of the source.
• Disciplinary action. Set and administer company policies equally across all employees, regardless of status. When disciplinary action is required, ensure it is equitable. There can be no harsher punishment or repercussions for some employees over others. Employees who commit similar infractions or rule violations must receive the same penalty. Regardless of their protected status.
• Layoffs/termination. Layoffs or employment separations (for cause or at-will) must be parity-based. Required layoffs should be based on a legitimate business reason for the action. Singling out individuals or groups of workers may be disparate treatment.

When terminating employees at-will, look for patterns to assure equity. Distribute at-will separations equally among protected and non-protected workers. When terminating an employee for cause, it may be necessary to validate performance evaluations and confirm disciplinary actions were fair and legitimate. If the actions leading to the decision were not based on specific, objective infractions or policy violations, there might be disparate treatment occurring.

The bottom line about disparate treatment

Disparate treatment is intentional discrimination. It comes in many forms and can occur at any stage of employment. In addition to management practices, coworkers may harass or exclude peers based on their status, creating a cause for a disparate treatment claim. A diverse workplace is a profitable workplace. Diversity thrives when employees (and applicants) are subject to the same terms and conditions of employment. Treating people differently or unfairly results in complaints, EEOC charges, and lawsuits can be the result.