Employment policies can be challenged if, for example, an employer hires only men, fires older workers, or separates employees by race, gender, or age. You may be entitled to compensation even if the employer’s practices are not intentionally designed to exclude, but have the effect of disproportionally disadvantaging employees with protected characteristics.
Systematic disparate treatment may be proven in two ways. First, the plaintiff may demonstrate that the employer has an announced, formal policy of discrimination. In this case, the discrimination will be obvious. Second, the plaintiff who fails to prove a formal policy of discrimination may nevertheless establish that the defendant’s employment decisions reveal a pattern or practice of disparate treatment. In the second case, the discrimination will be inferable from the impact of the discriminatory practices. In both cases, motive is critical.
Currently, it is difficult to prove an employer has an announced formal policy of discrimination because most employers understand the requirements of the antidiscrimination laws and would not normally adopt a facially discriminatory plan. The most likely method of obtaining a favorable judgment if there is a written policy somewhere. Otherwise, there must be inferences that could prove to a jury that policies in place result in discriminatory practices.
Systematic disparate treatment arises where no formal, announced policy of using protected characteristics, such as race or gender, can be established, but the plaintiff nevertheless shows a pattern of decisions explainable by the operation of bias in employment decisions. In sum, a plaintiff can establish a prima facie case of disparate treatment by showing that the employer’s personnel practices reveal discrimination by decisionmakers. This type of showing can usually be shown by statistical evidence of a gross and long-lasting disparity between different classes of people. The statistical evidence can be enhanced by anecdotal evidence that supports the inference that the employer had a policy of discriminating.
On the employment defense side, an employer may challenge the plaintiff’s prima facie case by introducing evidence showing that the plaintiff’s statistical data or techniques are flawed. A common tactic is to challenge the labor pool on which the data was based. In this instance, an employer’s experts are important to the outcome of a case.
Alternatively, an employer might raise a defense that their hiring is based on religion, sex, or national origin is a bona fide occupational qualification that is reasonably necessary to the normal operation of their particular business.
It is important to note that the disparate treatment theory of liability may be asserted against the government or against private entities.
If you need help with your business or employee, contact Rafael Rodriguez, business and employment attorney, at Rodriguez Lopez, APC. Rodriguez Lopez APC, can help your business from initial startup to defense. Click “Schedule an Appointment” to meet with attorney Rafael Rodriguez.
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