Discrimination as a result of disparate treatment means that the employer has deliberately treated members of a protected class differently from others, and that this treatment has had an adverse effect on their employment, promotion, security, or some other aspect of the terms and conditions of employment. Generally speaking, disparate treatment can be shown only when the discrimination results from a company policy, or some other overt act. These cases are comparatively rare.
Much more common are cases of discrimination involving disparate impact. Proving by means of a preponderance of evidence that Article 6.2 has been violated involves a series of discrete steps:
At Step One:
- Establishing a prima facie case. This is the threshold question. The grievant must produce evidence that he or she is a member of a protected class (everyone is), and that he or she has been treated less well than those who are not members of this class. The evidence is usually statistical, anecdotal, or historical.
At Arbitration:
- Shifting burden of production. Once the grievant has satisfied the prima facie requirement, the burden of proof shifts to the employer. Management must now show that the reason(s) for the disparate impact are unrelated to the individual's membership in a protected class. The employer generally produces annual evaluations, letters and memos, and other evidence designed to show that the employee is not the victim of discrimination.
- The burden returns to the employee. The employee must now demonstrate that the explanation provided by the employer is actually a pretext, and that the employee would have been promoted (or retained or whatever) but for his or her membership in that protected class. In other words, that the employer's action is based on discrimination.
Note 1: In the Duke Power case, the employer could not satisfactorily prove that a high school diploma was actually needed to do the work. The court ruled that this requirement was a pretext designed to discriminate against members of a particular race.
Note 2: The McDonnell Douglas Burdine case established a standard by which courts judge whether or not disparate treatment has occurred. (a) the plaintiff must demonstrate membership in a protected class, (b) the plaintiff must show that he or she sought and was qualified for employment or promotion, (c) the plaintiff was not employed or promoted, but that the employer has promoted other persons with similar qualifications at approximately the same time.
Note 3: The above is not intended as legal advice.
