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 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?


To prove discriminatory treatment, you must show that your employer's intention to discriminate on the basis of sex was a motivation for the policy. To do this you must show that you:
(1) are in the protected class (a woman);
(2) were discharged, not hired, or treated adversely with respect to promotion, compensation or terms and conditions of employment;
(3) were qualified for the job; and
(4) were either replaced by someone not within the class or others not in the class were treated more favorably.


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?


Under Wisconsin law women may be treated differently than men if being male is a bona fide occupational qualification (BFOQ) for a specific job. In this case, the employer must show that women are not capable of performing the essential duties required by a job. For example, a director casting the leading man for his new film can legitimately refuse to hire a woman for the role.


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


To prove that you suffered disparate treatment, you must first show that you were treated differently than similarly situated males. Your employer can counter that sex is a bona fide occupational qualification and that only a male could do the specific job or by giving some other legitimate non-discriminatory reason for the treatment you received. You can counter and prevail on your claim by showing that an employee doesn't need to be male to perform your job.


Does it matter when the discrimination occurred?


Yes. You must file a claim with the Equal Rights Division or the EEOC within three hundred (300) days of being discriminated against. For more information, please see How to File a Claim.


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


You may be entitled to recover lost wages, interest on lost wages, attorney fees and costs. The administrative law judge may order whatever is necessary to compensate you for the harm you have suffered including that you be reinstated or offered a job. For more information, please see remedies.



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