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Disparate Treatment Claims
I think my employer treats women differently than men.What does "disparate treatment" mean?Disparate treatment is any kind of action your employer may take with the intention of discriminating against you because you are a woman. The FEHA covers employers with five or more employees for disparate treatment claims. What kind of claims can be brought as a disparate treatment claim?There are many kinds of disparate treatment claims that may be brought. A claim against an employer who is paying you less than a man performing the same job is one example. Another example is a claim against an employer who refuses to promote you because you are a woman. Basically, if an employer acts against you with regard to your employment just because you are a woman, you may have a claim. I think that I may have experienced disparate treatment from my employer because of my gender, how do I prove it?The proof of disparate treatment will vary slightly depending on the facts of your case. In general, you need to present actions taken by your employer that, if left unexplained by your employer, create an inference that the actions were more likely than not a result of discrimination based on your sex. Please refer to the separate sections on sex discrimination in hiring , firing , and promotions for more detail. What is the difference between disparate treatment and disparate impact?The main difference between disparate treatment and disparate impact revolves around your employer’s intentions. Disparate treatment involves action by the employer intended to discriminate against women. An explicitly discriminatory policy such as separate pay scales for men and women counts as disparate treatment. However, disparate impact involves an employer’s policy, which the employer may not have intended to be discriminatory, but nonetheless affects women more negatively than men. For my disparate treatment claim, do I have to prove that my employer intended to discriminate against me?To prove disparate treatment, you usually need to show that your employer intended to discriminate against you. However, if you are experiencing disparate treatment because your employer has a policy that is discriminatory on its face, you do not need to show discriminatory intent to prove disparate treatment. For example, if your employer has a explicit policy of paying men more than women, you do not need to prove discriminatory intent. Are there times when an employer may legally treat women differently than men? Yes. An employer may treat you differently if the treatment is based on a bona fide occupational qualification. A bona fide occupational qualification means any characteristic that is necessary to perform the job safely and efficiently without undermining the essence of the business operation. Under the FEHA, an employer may also give preference to veterans. For instance, if an employer chooses to hire a man instead of you because he is veteran, the employer is legally justified in doing so. What could my employer do to deny my allegations, and how do I respond to its denials?An employer could deny your allegations by offering legitimate, non-discriminatory reasons for acting against you. For example, an employer could say that it fired you because of poor work performance or that it gave you fewer benefits because you worked fewer hours. You can respond to your employer’s denials directly by presenting evidence that your employer’s actions were more likely than not motivated by discriminatory reasons or indirectly by presenting evidence that the reasons offered by your employer lack credibility.
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