By Toni Ahl
Although I don’t have children in school anymore, I always know it’s back to school time. I live about two blocks from a high school, so the traffic on my street really increases when school starts back. We have the school buses along with all of the teen drivers. Sometimes my street feels more like a racing course. Then I know that summer is over, and the season has changed even if it has not according to the calendar or temperature.
Discrimination does not have a season. It happens all year long. There may be some cycles where there are more charges than others, but the work is usually pretty steady. I’ve written about all of the protected classes since I began doing this blog. Title VII of the Civil Rights Act of 1964, as amended, protects employees based on race, color, religion, national origin and sex. The Age Discrimination in Employment Act protects employees age 40 and over. If an employee has a physical or mental impairment, illness or injury that substantially limits a major life activity, has a record of such impairment or is perceived as having an impairment, he/she has coverage under the Americans with Disabilities Act of 1990, as amended. Employers also may not discriminate against employees due to their genetics or family medical history. The Pregnancy Discrimination Act protects females who are pregnant from being treated differently due to their pregnancies. I think sometimes we forget to go back to the basics when we talk about discrimination though.
In investigating a charge of discrimination, in the majority of charges, we are looking at a case of disparate treatment. In other words, who was treated differently under similar conditions. We also want to see who was treated like or better than the Charging Party. In other words, we want a full picture of the workplace.
Respondent’s usually tell EEOC who was treated similarly especially if the person is a member of another protected class. They often don’t tell EEOC who was treated differently. Charging Parties frequently provide information about who was treated differently. They, however, are not aware of the reason(s) why the difference in treatment may have occurred.
The laws don’t say that employers can’t treat employees differently, but rather, say that there must be a legitimate non-discriminatory reason for the treatment, and it cannot be because of his/her protected status. Determining if that stated reason is a pretext for discrimination is what EEOC must do. This type of analysis is based on a Supreme Court case, McDonnell Douglas Corp. v. Green 411 U.S. 792, 93 S. CT. 1817 (1973). This case describes the shifting of the burden of proof in a disparate treatment case. The Charging Party first establishes a prima facie case, the Respondent provides a legitimate non-discriminatory reason for the treatment and then a determination is made if the stated reason is a pretext for discrimination.
In order to establish a prima facie case, the Charging Party must provide some information. In a hiring case, for example, to establish a prima facie case, the Charging Party would need to establish that he/she applied for and was qualified for the position. The second prong is that someone of another protected class was selected although the Charging Party was better qualified.
After the Respondent provides a legitimate non-discriminatory reason for its action(s) along with evidence to substantiate its position, a determination can be made about whether its reason is a pretext for discrimination.
This same analysis is used for disparate treatment cases regardless of the issue. If there is more than one issue, it is used for each issue. Likewise, if there is more than one basis, a separate analysis may be needed for each basis.
If you would like additional information about disparate treatment, feel free to reach out to me. I can be reached at (502) 553-7648 or email@example.com.