Disparate Treatment

Disparate Treatment vs. Disparate Impact

Employment discrimination law recognizes two distinct theories. Disparate treatment is intentional: the employer meant to treat the employee differently because of their protected characteristic. Disparate impact is unintentional: a neutral policy happens to screen out a protected group at a higher rate. Both are illegal, but they require different evidence and have different defenses. Most people's intuitive understanding of discrimination — 'they fired me because of my race' — is disparate treatment.

What Counts as Evidence

• Direct evidence: an explicit statement from a decision-maker ('we don't promote women to VP') — rare, because employers rarely document discriminatory intent.
• Circumstantial evidence: the employee was replaced by someone outside the protected class; similarly situated employees outside the protected class were treated more favorably; the employer's stated reason for the decision keeps changing (pretext).
• Comparator evidence: the most important evidence — identifying a specific employee in a similar role who committed the same conduct but was treated differently. Lack of a good comparator weakens most disparate treatment claims.
• The McDonnell Douglas framework: when direct evidence is absent, courts use this burden-shifting test — the employee shows a basic case, the employer provides a legitimate non-discriminatory reason, then the employee must show that reason is pretextual.

Common Situations

• Hiring: declining to interview or hire someone due to a name that signals race or national origin, or asking about pregnancy during an interview.
• Compensation: paying employees in a protected class less than comparably situated colleagues outside the class.
• Discipline: applying progressive discipline more harshly to employees of one race, gender, or age group than others who commit similar violations.
• Termination: selecting employees from a protected class for layoff while retaining less-senior employees outside that class.
• Promotion: consistently passing over qualified candidates from a protected group in favor of less-qualified candidates outside it.

What Employees Can Do

• Document the disparity: keep records of decisions made, who was present, what was said, and how similarly situated colleagues were treated differently.
• Internal complaint first: most discrimination claims require an internal complaint (HR or EEO officer) before filing with the EEOC — and failing to complain can limit damages.
• EEOC charge: before suing under federal law (Title VII, ADEA, ADA), you must file a charge with the EEOC within 180–300 days of the discriminatory act.
• State law may offer additional protections: many states have their own anti-discrimination laws with longer filing deadlines, lower employer size thresholds, and broader protected classes.

Example

A marketing manager with 12 years of experience and strong performance reviews is passed over for VP three times. Each time, a male colleague with fewer years of experience and comparable reviews is promoted instead. She raises the pattern with HR; the company responds that each decision was made on 'leadership potential.' She files an EEOC charge, providing documentation of her performance records, the male comparators' qualifications, and emails from a senior leader describing her as 'not quite ready' despite objective metrics showing otherwise. The shifting and subjective justifications — and the consistent pattern across three decisions — constitute circumstantial evidence of disparate treatment.