Disparate Treatment Claims


What does "disparate treatment" mean?


"Disparate treatment" refers to a policy or practice that explicitly treats women differently than similarly situated 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 acts against you with regard to your employment just because you are a woman, you may have a claim.


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


You need to prove that gender was a "substantial factor" in your employer's adverse employment decision. To do this, you must show that:1) you are a member of a protected group (i.e., a woman);

2) you sought and were qualified for opportunities that were available;
3) your employer denied you these opportunities or took similar adverse action towards you; and
4) the opportunities remained available or were given to men with equal or lesser qualifications than you, or men were simply just treated better than you.


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.


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


Yes, under the Washington Law Against Discrimination (WLAD), an exception to the rule that an employer may not discriminate on the basis of sex if an employee's sex is a bona fide occupational qualification (BFOQ). A BFOQ is an employment qualification that may discriminate against women, but is legally legitimate as long as it is reasonably necessary to the operation of the particular business. For example, a BFOQ may apply where it is necessary for the purpose of authenticity (e.g., model, actor, actress) or to maintain conventional standards of sexual privacy (e.g., locker room attendant, intimate apparel fitter).


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


In Washington, courts use a three-step analysis to evaluate discrimination cases. First, you must present initial evidence of discrimination -- for this step, the court will assume that everything you allege is true, and if it is sufficient to show that discrimination took place, the case will continue. Next, your employer will have an opportunity to provide non-discriminatory reasons for what happened. Finally, to prevail, you must rebut your employer's explanation. However, the ultimate is yours to show that gender was a "substantial factor" in your employer's adverse employment decision.


You can demonstrate that your employer's reasons are unworthy of belief with evidence that: (1) your employer's reasons have no basis in fact;

(2) even if the reasons are based on fact, your employer was not motivated by the reasons; or
(3) the reasons are insufficient to motivate the adverse employment decision.


When a complaint is filed with the Commission, the Commission acts as a neutral fact-finder. The Commission is not an advocate for either side. Their role under the law is to gather facts about the situation and then determine whether there is cause to believe that discrimination occurred. The Commission will send a written notice to the person(s) alleged to have committed the act of discrimination. The Commission will ask for a written response to the charge. A Commission Investigator will investigate the complaint by gathering more evidence, interviewing witnesses, or conducting site visits.


Does it mater when the discrimination occurred?


Yes. You must file your complaint with the Commission within six months of the date of your employer's discriminatory conduct. Under federal law, however, you have three hundred (300) days to file a claim with the Equal Employment Opportunity Commission (EEOC).


Although the WLAD does not expressly provide for a particular statute of limitations -- or period of time during which you must file a claim - for employment discrimination claims, courts generally apply a three (3) year statute of limitations.


What options do I have if my employer has fewer than 8 employees?


Unfortunately, under Washington law, if your employer has fewer than eight (8) employees, your legal options are severely limited. Employers with fewer than eight (8) employees are exempt from the WLAD. The Washington Supreme Court, however, found that the state has established a clear public policy against discrimination based on sex. As a result, if you believe that you have been fired because of sex discrimination, you may have a claim for the common-law tort of wrongful discharge even if your employer has less than eight (8) employees.


Please note that this Supreme Court ruling does NOT change the WLAD. The Human Rights Commission cannot investigate sex discrimination complaints against employers with less than eight (8) employees. Some cities and counties, however, have adopted ordinances that do protect employees of smaller employers. Check with the Human Rights Commission for more information which cities and counties have adopted such ordinances.


Regardless of whether you are able to file a claim, you can still try to make change in the workplace by taking action such as talking to your employer or starting a WAGE club.


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


You may be entitled to equitable relief or monetary damages. For more information, please see Remedies.



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