Disparate Treatment Claims


What does "disparate treatment" mean?


"Disparate treatment" refers to a policy or practice that explicitly treats women differently from men.


What kind of claims can be brought as a disparate treatment claim?


There are many kinds of disparate treatment claims that may be brought. A claim against an employer who is paying you less than a man performing the same job is one example. Another example is a claim against an employer who refuses to promote you because you are a woman. Basically, if an employer discriminates just because you are a woman, you may file a claim.


I think that a company hiring policy treats me differently because of my gender, how do I prove it?


To prove a claim of disparate treatment, you must show all of the following that:
(1) you are a member of a protected group (i.e., a female);
(2) you were qualified for the job;
(3) you were negatively affected by your employer's decisions; and
(4) you were treated less favorably than male employees.


What is the difference between disparate treatment and disparate impact?


The main difference between disparate treatment and disparate impact is the intent of your employer. Disparate impact involves a policy which your employer may not have intended to be discriminatory, but which nonetheless affects women more negatively than men. Disparate treatment, on the other hand, involves action by your employer which is explicitly intended to discriminate against women, such as separate pay scales for men and women.


What types of claims can be brought under disparate treatment?


The same types of claims that can be brought under disparate impact can also be brought under disparate treatment. Claims may include those relating to compensation, promotion, pregnancy, hiring, and firing. The main difference is that you will need to show that your employer intentionally treated you differently because you are a woman.


Are there times when an employment policy or practice may legally treat women differently than men?


An employer can legally distinguish between positions for men and women as long as this employment policy or practice is reasonably necessary to the operation of that employer's business. This is known as a bona fide occupational qualification (BFOQ). For example, you may not get the part in a movie when the part is for a male. However, it is illegal for an employer to refuse to hire a female simply because customers or co-workers would prefer a man in that position.


What could my employer do to deny my allegations, and how do I respond to their denials?


After you have shown that your employer treated you differently than male employees, it can raise a legitimate reason for this treatment. For example, your employer can say you were fired because you were not strong enough for that job. In response to their denial you must persuade the trier of fact (i.e. the division, judge, or jury) that your employer's reason is a pretext for discrimination.


Does it matter when the discrimination occurred?


Under the LAD, you must file a claim with the New Jersey Division on Human rights within one-hundred and eighty (180) days of the discrimination. If you wish to bypass the Division, and file with the New Jersey Superior Court, you must file within two (2) years of the discrimination.


For more information on how to file a claim, click here.


What options do I have if my employer has fewer than fifteen (15) employees?


While you are only protected under federal law if your employee has more than fifteen (15) employees, under the LAD, you are protected regardless of how many employees your employer has. So while you may not be able to file a federal claim, your claim in New Jersey is still valid.


If I prove my disparate treatment claim, what remedies am I entitled to?


You will be entitled to equitable relief, which is relief intended to make you whole again. You may be able to recover remedies such as back pay to compensate you for lost earnings, front pay to compensate for a pay differential resulting from discrimination, injunctive relief to correct your employer's discriminatory practices, or reinstatement to any position that you lost as a result of discrimination.




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