Differential treatment in US labor law refers to unequal treatment based on membership in a particular class, such as race, disability, gender, creed, age or ethnicity. Disparate treatment is a civil rights violation and can result in legal penalties. Affirmative action policies and documented needs for disparate treatment are exceptions. Disparate impact is a related but different legal issue where seemingly neutral policies have a negative effect on protected classes due to social inequalities.
Differential treatment is a concept in US labor law relating to situations where people are treated differently based on membership in a particular class. It is considered a civil rights violation when it involves unequal treatment on the basis of race, disability, gender, creed, age or ethnicity. This topic is discussed in the Civil Rights Act, a key piece of anti-discrimination legislation in the United States passed in 1964 to address inequality concerns in settings such as education, housing and the workplace.
In disparate treatment, people receive adverse treatment such as lack of access to employment or benefits on the basis of their belonging to a protected class. Employers who refuse to employ disabled workers, for example, would face unequal treatment and could be subject to legal penalties. Employees may be able to demonstrate discrimination directly, by pointing to discriminatory statements or policies, or by inference.
The law specifically provides protection for cases where employers use affirmative action policies or can document a clear need for disparate treatment on behalf of people in a typically protected class. Employees with programs to increase the employment of people of color, for example, technically use disparate treatment in their hiring practices, but it’s considered legal as part of an affirmative course of action. Similarly, a company with a specific need for people belonging to a specific protected class may preferentially hire these people, as long as the need is clearly documented.
People can sue workplaces for disparate treatment if they can prove directly or through inference that a company is making discriminatory decisions. Companies that offer benefits only to Christian employees, for example, could find themselves being sued by non-Christian people who want access to those benefits. Employers are generally very careful to avoid favoritism and unfair policies with the aim of giving all employees equal and fair treatment and avoiding legal liability for discrimination.
This is not to be confused with a disparate impact, a related but different legal issue. This concept involves seemingly neutral policies, such as an educational requirement, which tend to have a negative effect on people in protected classes due to social inequalities. For example, a hospital that requires all physicians to have medical degrees and board certification is not discriminating, but it may hire fewer women and people of color because these people are less likely to be able to attend the medical school.
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