Disparate Treatment
Disparate treatment is intentional employment discrimination. An employer treats an employee less favorably than others because of a protected characteristic such as race, sex, age, disability, religion, national origin, sexual orientation, or pregnancy. Unlike disparate impact, the case turns on the employer's motive.
KEY TAKEAWAYS
- Disparate treatment is intentional discrimination: the employer treats the worker worse because of a protected characteristic.
- The McDonnell Douglas burden-shifting framework controls circumstantial-evidence cases under Title VII and FEHA (adopted by Guz v. Bechtel, 24 Cal.4th 317).
- Direct evidence (a hiring manager's discriminatory remark tied to the decision) can short-circuit McDonnell Douglas entirely and beat summary judgment outright.
- FEHA filing window is three years to the CRD; Title VII is 300 days to the EEOC in California (180 days as the federal baseline).
The federal framework comes from McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792, which set up a three-step burden-shifting analysis. The plaintiff first puts on a prima facie case: protected class, qualified, adverse action, and circumstances supporting an inference of discrimination. The employer then offers a legitimate, nondiscriminatory reason. The plaintiff finally has to show that reason is pretext for discrimination. California adopted the same framework in Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317.
FEHA's intentional-discrimination prohibition is at Gov. Code §12940(a). Direct evidence (a manager's discriminatory remark tied to the decision) can short-circuit the McDonnell Douglas framework entirely.
Example: A 47-year-old senior engineer applies for an internal promotion at a regional tech firm. The hiring manager selects a 28-year-old with fewer years on the platform. During the debrief, the hiring manager tells the engineer "we want someone with more runway ahead." That remark plus the qualifications gap is direct evidence of age-based disparate treatment and supports an ADEA claim and a FEHA Gov. Code §12940(a) claim.
Filing window: 300 days with the EEOC and three years with the CRD. A California employment discrimination lawyer can pull the evidence on motive and comparators.
From our practice: Direct-evidence cases are rare. Most disparate-treatment cases we try are built from comparator data, timing, and inconsistencies. We pull the personnel files of every similarly situated employee outside the protected class. The pattern (or absence of pattern) usually decides the case before a jury hears a word.
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