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2019 Kentucky Derby


Reminded me of the disparate treatment theory of employment discrimination.

From our friend Toni Ahl at EEO Advantage.

So why am I writing about the Kentucky Derby on a blog dealing with employment issues? What happened at the race this year reminded me of the disparate treatment theory of employment discrimination.

As you may or may not know, I’m from Louisville, KY and have lived here for most of my life. The Kentucky Derby is the premier event for our city. We have two weeks of festivities leading up to the big horse race. People from around the world come to Louisville to enjoy the race and the fun surrounding the race.

This year the horse that crossed the finish line first, Maximum Security, was disqualified. It took the racing stewards at Churchill Downs almost a half hour to review all the tapes and photos from the race to make a determination as to whether the racing rules had been broken. Two jockeys filed for the inquiry due to interference. For those of you who don’t know much about racing, horses are supposed to stay in lanes almost like cars and not cut out in front of other horses. The rules state that they are supposed to stay in the lane they are in and not cut in front of other horses. This is to protect them from colliding which can be catastrophic for the horses as well as the jockeys. Unfortunately for Maximum Security, he was spooked by all the noise of the 150,700+ people at Churchill Downs on Saturday and drifted over into several other lanes. The racing stewards followed the rules and disqualified him from winning. Many people, including his owners, are still unhappy about what happened.

I’ve stressed in articles before about the consistency of applying company’s policies and procedures and how it affects employment. The same can be said for the race, the stewards followed the rule even though the race was the Kentucky Derby. Likewise, employers should consistently follow their rules in employment situations in most cases.

Many of the charges investigated by the Equal Employment Opportunity Commission (EEOC) are analyzed under the disparate treatment theory of discrimination. Under this theory, the treatment of members of different protected classes are compared. The disparate treatment theory was outlined in the case of McDonnell Douglas v. Green (1973).

Let’s take an example of someone who has applied to be hired, but who was not selected. Under the disparate treatment theory, we would first determine if the behavior was the result of the individual being a member of one of the protected classes covered by the statutes enforced by EEOC. Next, we would consider if the person applied and was qualified. We would then consider if they were not selected and who was selected. This is the adverse impact. We would examine the reason the company stated for selecting the other person and the protected class of the person selected. The final step is determining if there is a nexus between their protected the class and their non-selection.

In the disparate treatment analysis, we compare similarly situated individuals. So, for a non-selection case, we would look at the pool of the other qualified candidates who applied for the same position. If the company stated that it hired the selectee due to prior experience, we would look at the prior experience of the other candidates to see if that reason is legitimate or a pretext for discrimination. If the employer treated applicants consistently, the documentary evidence should show that the selected individual had the most prior experience and that the employer consistently applied the selection standards it indicated were used.

Applying policies consistently, whether in hiring, promotions, discipline and/or discharge, is key in avoiding a finding of discrimination under the disparate treatment theory of discrimination. There are exceptions to every rule. If an accommodation is requested by an employee due to disability and/or religion, the treatment by the employer may necessarily be different. In many cases, however, consistency is the guiding principle.

Knowledge and perception are key to the disparate treatment theory. Many cases analyzed under this theory also are based on circumstantial evidence rather than direct evidence.

So, like the racing stewards at this year’s Derby, although decisions made may not be popular, they may be the best for the good of the organization.

If you would like more information about theories of discrimination or investigations, feel free to contact me at eeoadvantage@gmail.com or (502) 553-7648. And, it’s only 363 days until the 2020 Kentucky Derby!

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