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Disparate treatment: Who has the burden of proof?

On Behalf of | Sep 10, 2020 | Workplace Discrimination |

Federal law prohibits discrimination in the workplace on the grounds of race, color, religion, national origin, sex, pregnancy and disability. One of the most common types of discrimination claims involves disparate treatment – that is, an allegation that an employer treated someone differently because of their race, religion, sex, etc. But how can you, as an employee (or job applicant), prove disparate treatment? To what extent is that burden of proof on you?

Making a prima facie case

With federal disparate treatment claims under Title VII, employees do have the initial burden of proof. This means you must show that:

  1. You belong to a protected class – that is, you’re protected from discrimination on account of your race, color, national origin, religion or sex
  2. Your employer, manager or boss knew that you belong to a protected class – that is, they’re aware of your race, color, national origin, religion or sex (in a general way; they don’t need to have known specifics)
  3. You suffered an adverse employment action – for example, you were fired, demoted, not hired (as a job applicant), passed over for a promotion, denied opportunities for career growth or given unfavorable work assignments
  4. Others who aren’t in your protected class were treated more favorably – that is, employees or job applicants who are otherwise similarly situated with regard to credentials, seniority and job position weren’t subject to the same adverse treatment, or were treated better

What next?

The burden shifts

Once you prove these initial four elements – in legal terminology, making a prima facie case of disparate treatment – the burden of proof shifts to your employer. They must now prove a legitimate, nondiscriminatory reason for taking adverse employment action against you. Assuming they can do so, the burden of proof then shifts back to you – the employee or applicant – to demonstrate that their nondiscriminatory reason doesn’t hold water (that it’s a pretext or coverup for a discriminatory motive).

As you can see, this shifting burden of proof can be complicated to grasp. But it’s critical for successfully navigating an employment discrimination claim.