Disparate Treatment

Disparate treatment occurs when an employer deliberately discriminates against applicants or employees on the basis of race, religion, sex (including gender identity and pregnancy), gender, sexual orientation, color, or national origin. Laws such as Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990 (ADA), and the Age Discrimination in Employment Act of 1967 (ADEA) all prohibit discrimination against protected groups of individuals. 

Disparate treatment can include any of these:

• Refusal to hire
• Reason for termination
• Refusal to promote qualified employees
• Establishment of job requirements that are unrelated to Bone Fide Occupational Qualification (BFOQ)

For disparate treatment to occur, these things must be present:

• The employee or applicant is a member of a protected class.
• When the disparate treatment occurred, the employer had to know that the employee or applicant was a member of a protected class.
• The employer negatively acted against the employee or applicant.
• People who were not members of a protected class received more favorable treatment. 
  

Disparate treatment should not be confused with disparate impact, which usually occurs unintentionally. 

Example: 

If a company requires that only Black Americans are required to complete pre-employment assessment tests, this is disparate treatment. Another example would be if a company does an annual re-screening of all female employees while excluding male employees from the screening.