Disparate Treatment Claims


I think my employer treats women differently from men.


It happened to me: A Real Life Story


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?


Any claim that a woman was not hired, fired, or promoted can be brought as a disparate treatment claim. In addition to these, claims that you were reassigned to a different job with significantly different responsibilities or denied benefits, can be brought as disparate treatment claims.


I think that a company policy adversely affects me because of my gender, how do I prove it?


To prove that your employer has a policy or practice that treats women differently from men, you must show the following elements:
1. You are a member of a protected class (i.e. a woman);
2. You were qualified for your position;
3. You have suffered an "adverse employment action;" and
4. Men, who are similarly situated in your workplace, were treated more favorably.


By establishing all of these elements, you will create an initial presumption that your employer discriminated against you on the basis of sex.


What is the difference between disparate treatment and disparate impact?


Whereas disparate impact discrimination is disguised as a "facially neutral" policy or practice, disparate treatment discrimination refers to a policy or practice that explicitly targets women in the workplace. In proving a disparate treatment claim, unlike a disparate impact claim, a woman must prove an underlying intent to discriminate.


What types of claims can be brought under disparate treatment?


Generally, claims in which your employer illegally considers sex in hiring, promoting, and firing may be brought as disparate treatment claims.


Are there times when an employment policy or practice may legally treat women different from men?


Yes, in some circumstances, it may be perfectly legal for your employer to treat or impact women differently. Texas law permits such practices if your employer can prove that the practice does not intentionally violate state law or if the practice is "justified by business necessity." Additionally, Texas allows gender to be a bona fide occupational qualification (BFOQ). In other words, your employer may be able to show that gender is a necessary qualification for a given job (i.e. a weight, height, or strength requirement). To do so, your employer must show that being a man is both "reasonably related to the satisfactory performance" of the job and that there is a "factual basis" to believe that no woman would be able to "perform the duties of the job with safety and efficiency."


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


Your employer will have an opportunity to produce evidence that it engaged in the practice, policy, or action against you for a legal, non-discriminatory reason. If your employer is silent or does not rebut your initial evidence, and if the court or jury believes your evidence, you will win the case. On the other hand, if your employer does offer evidence that it engaged in the practice, policy, or action against you for a legal, non-discriminatory reason, you will have the final burden to persuade the court to believe your side of the story.


Ultimately, you must persuade the court or jury that your gender was a motivating factor behind your employer's practice or policy — even if other factors were at play as well. Be aware, however, that under Texas law, if your employer can show that it would have engaged in the same policy or practice against you anyway, despite illegally considering your sex, your remedies may be limited to "declaratory relief, injunctive relief, and ... [certain] attorney's fees." Click here to learn about what remedies you may be entitled to under Texas law.


What evidence will support my claim?


Texas courts have held that your "subjective" or personal belief that your employer discriminated against you is not enough evidence on its own to sustain your claim. You must produce either "direct evidence" or "circumstantial evidence" of sex discrimination.


"Direct evidence" is evidence of discrimination that is so clear that no one would have to infer or imply any meaning to it. Generally, "direct evidence" can be any statement or document from your employer that clearly demonstrates it had illegally considered gender in its policy or practice — even if other factors may have been at play.


Courts recognize that plaintiffs can rarely produce "direct evidence" of sex discrimination. Therefore, courts allow plaintiffs to produce what is known as "circumstantial evidence" of discrimination. "Circumstantial evidence" essentially is any fact from which the court can infer discrimination indirectly, such as patterns of conduct against women, derogatory comments toward women, favoritism toward men in the workplace, or other evidence of differential treatment between men and women.



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