Running Head: Disparate Treatment 1

Disparate Treatment

Janadean Ross

HRA 335

November 7, 2010
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Introduction

Two employees, one male and one female, get into an altercation. Both employees have

a positive track record and neither has been involved in any kind of altercation before. All

records for each employee may contain a couple of slight imperfections but neither has had any

serious problems. The male employee is put onto a probationary status while the female

employee is terminated.

A highly skilled and educated female applies for an open position at a company. She

believes her skills and education meets the requirements of the position and the company

schedules her for an interview. She believes the interview went very well but receives

communication from human resources a few days later and is told that she was not selected for

the position and the company continues to advertise for the position. Are these cases of disparate

treatment?

Disparate Treatment

Disparate treatment is defined as intentional discriminating acts against an individual, or

individuals, because of a disability or because they belong to a particular group based on race,

sex, color, creed, gender, or ethnicity (n.d.). Heneman and Judge (2009) state that evidence of

disparate treatment can be direct, mixed motive, or entail situational factors (p. 58). Direct

evidence may include written verbiage in a policy or a handbook that states only men may be

hired for certain jobs. Supervisors will normally not disclose to an applicant the reasons for not

being hired which make direct evidence very difficult to obtain. Other direct evidence that may

be brought in to support disparate treatment can be vague statements either oral or written,

behavior to members of the same protected class, or “suspicious timing” (HR Guide, n.d.).
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Mixed motive evidence combines a prohibitive class such as sex with a legitimate reason

such as qualifications (Heneman and Judge, p. 58). Using both of those methods, an employee

may be denied a job promotion or to be hired into a position. If a person is denied a position or a

promotion simply because there is a lack of job qualifications of education requirements, that is

certainly not illegal. However, if an employer does not hire or promote a candidate because the

person belongs in a protected class and the person is lacking is necessary requirements, then the

decision is illegal despite the evidence of “lawful motive” (p. 58).

Discriminations of employees for hiring or promotions may also come from situational

factors. These four factors are (1) the person belongs to a protected class, (2) the person applied

for, and was qualified for, a position needing to be filled, (3) although the person was qualified,

the person was not selected for the position and (4) the position remained open with the

employer continually seeking qualified applicants who are as qualified as the candidate who was

not selected. If an applicant chooses to pursue further action against the employer for the lack of

hiring, all four factors must be proven.

Situational Factors

The first factor that an applicant has to prove is the belonging to a protected class.

Protected classes include age, color, creed, disability, national origin, race, religion, sex/gender.

Any person who is suffers negatively to employment situations because of a class protection is

said to have been discriminated against. If a person is not hired because of the color of the skin,

discrimination has occurred. If a person is not promoted because of disability, disparate

treatment could have occurred. If an employee is terminated because of the religious views then

that employee could file a wrongful termination suit against the company and win. This factor is
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important because it is the framework of the disparate treatment. If this condition is not met,

then disparate treatment has not occurred.

The next situational factor that must be met is that the person applied for, and was

qualified for, a position the employer was hiring for (p. 58). If the case is a termination case, the

evidence must show the employee was performing at the employer’s acceptable standards.

There is a firm importance in this factor. If a candidate applies for an offered position and only

meets some of the requirements for the position, and this person is not selected, no disparate

treatment has occurred. The applicant must meet all education related requirements as well as all

job related requirements.

If those requirements have been met, then the courts move on to the situational factor

number three. If an applicant was fully qualified for the position but was rejected for an

unknown reason, there may be proof of disparate treatment. Older applicants may be told they

are “over-qualified” for a position (Sack, n.d.). Proof for cases involving termination would look

at previous history of other employees who committed the same offense to see the punishment

doled out in that case. For hiring and termination aspects, evidence would need to be presented

showing that qualifications met or exceeded those warranted by the position. The applicant

could have been rejected pre or post interview. Occasionally the applicant will hear back from

human resources that they were not qualified for the position or they were over qualified for the

position. Most of the time, the applicant will not know the reasoning for not being hired. The

importance of this factor is essentially showing that the applicant did not turn down an offer of

employment for any reason and that the employer is still searching for a candidate to fill the

position.
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The last situational factor that has to be proven is that the position remained open and the

employer actively sought a candidate to fill the position after rejecting the qualified applicant. In

the case of termination, proof would be provided showing the employer proceeded with a

reduction in workforce of the older employee’s position and then reopened the position for a

younger employee. This factor is the finally piece of proof for disparate treatment. If an

employer rejected a qualified applicant and then closed the position due to lack of funding for the

position then disparate treatment has not occurred. If an employer rejects the applicant and then

increases the requirements of the position to greater than the qualifications of the previous

applicant, a case for disparate treatment could still exist.

Conclusion

In order to prevent claims of disparate treatment, companies need to ensure the hiring and

firing policies are worded very directly. There should never be any wording in job descriptions

stating females cannot be hired into certain positions. Wording in job positions and

advertisements also need to be correct. While a company can request applicants have certain

collegiate degrees, specifying a length of time out of school or a minimum age is illegal. Human

resources should keep a log of all applications received and notate on this log the exact reasoning

an applicant was rejected. Interviewers should ensure questions asked of applicants remain

specifically about the job being applied for and should not ask questions about the applicants

personal life. If an applicant is rejected after the interview, detailed explanations about why said

applicant was rejected need to be logged. Human resource personnel need to ensure all

supervisors understand the necessary paper trail required before termination of any employee.

All of this information will assist companies in defending any claims of disparate treatment.
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References

Disparate Treatment Definition. (n.d.). BusinessDictionary.com - Online Business Dictionary.

Retrieved November 3, 2010, from

http://www.businessdictionary.com/definition/disparate-treatment.html

Heneman III, H., & Judge, T. (2008). Support Activities. Staffing Organizations (text only)6th

(Sixth) edition by H. Heneman (6 edition ed., p. 58). New York: McGraw-Hill/Irwin.

HR Guide to the Internet: EEO: Disparate Treatment. (n.d.). EEO: Disparate Treatment.

Retrieved November 3, 2010, from www.hr-guide.com/data/G701.htm

Sack, S. (n.d.). - Learn About the Law. Find your legal rights, legal Information, law for

common legal issues including lawyers for legal advice or legal help to your legal

issues. Retrieved November 3, 2010, from http://public.findlaw.com/bookshelf-working-

woman/wmnchp6_g.html