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To achieve our goal of keeping you informed, this blog is Part IX and an update of our series on federal laws that apply to the issues of workplace harassment, discrimination, & retaliation in New York. In Part VIII, we provided you with an overview of “Prohibited Conducts” under the various federal laws. Accordingly, to move the discussion forward, we will hammer on “Disparate Treatment Claims,” as recognized by the following applicable federal laws in this blog.

Disparate Treatment Claims Recognized by Federal Laws Applicable to Workplace Harassment, Discrimination, & Retaliation in New York.

For starters, disparate treatment claims refer to ways an employee can prove illegal employment discrimination. Before we dive in, it is crucial to note that the following information was current as of March 26, 2021.

Americans with Disabilities Act (ADA)

Disparate treatment claims brought forth under the ADA entail allegations that the employer discriminated against a person or a group based on a certain disability or protected trait. Thus, a person or a group bringing the claim might feel that they were treated less favorably than others because of having a disability. In these claims, determining whether the employer’s action was actually motivated by the disability or protected trait determines employer liability. Usually, a plaintiff must establish the following to state a claim of disability discrimination:

  • The individual has an ADA-defined disability.
  • The individual suffered an adverse employment action.
  • With or without reasonable accommodation, the individual could perform the essential functions of the job.
  • The employer is subject to the ADA.

Like in disparate treatment claims brought forth under Title VII, ADEA discrimination claims also adopt the burden-shifting scheme set forth by the U.S. Supreme Court. The scheme requires the establishment of a prima facie case of discrimination by a plaintiff, after which the employer bears the burden to devise a credible, permissible, and non-discriminatory reason for the alleged adverse treatment in question. Although the plaintiff can offer evidence showing pretense in the employer’s explanation so as to prove disparate treatment, the presumption of intentional discrimination disappears if this burden is met by the employer.

Title VII of the Civil Rights Act of 1964 (Title VII)

Disparate treatment claims brought forth under Title VII entail allegations that the employer discriminated against a person or a group based on the person’s or group’s national origin, religion, sex, color, or race. The burden-shifting framework outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is generally followed when evaluating disparate treatment claims under Title VII.

For a disparate treatment claim to have a stand in court, an employee must establish a prima facie case of discrimination by showing the following:

  • The employee was qualified for the essential functions of the job in question.
  • The employee is a member of a protected class.
  • That the employer took the adverse employment action under circumstances that give rise to an unlawful discrimination inference or that the employer treated other similarly situated employees who did not belong to the employee’s class more favorably.
  • The employer subjected the employee to an adverse employment action.

Pregnancy Discrimination Act (PDA)

Pregnancy was included as a protected status following the amendment of Title VII to incorporate the PDA. This means that while the PDA recognizes and allows disparate treatment claims, claims applicable under Title VII also apply to the PDA. However, to make such a case under the ADA, an employee must do the following to establish a prima facie case of disparate treatment:

  • The employee belongs to the protected class.
  • The employee sought accommodation from the employer.
  • The employer failed to accommodate this employee.
  • Other similarly situated employees were accommodated, but this employee was not.

Age Discrimination in Employment Act (ADEA)

Disparate treatment claims brought forth under the ADEA entail allegations that the employer discriminated against a person aged 40 years or older or a group aged 40 years or over based on the person’s or group’s age. Thus, while it could lead to liability for an employer, an age-based remark may lead to a disparate treatment claim.

The “motivating factor” concept has significant implications under Title VII claims. However, “motivating factor” cases are not available to employees under the ADEA, although they are available to employees who bring forth claims under Title VII. Giving rise to a “no motivating factor analysis in ADEA claims,” this concept implies that it is hard for employees to establish an ADEA claim by demonstrating that age was merely a “motivating factor” in the decision made by the employer. Rather, when bringing a disparate treatment claim under the ADEA, an employee must rely on a preponderance of the evidence to prove that regarding the challenged adverse employment action, age was a ‘but-for’ cause.

Section 1981

Under section 1981, only intentional discrimination claims can be brought forth by the plaintiff. Thus, direct or indirect evidence can be used by a plaintiff to prove an employer’s intent to discriminate. However, such a plaintiff is required to prove purposeful employment discrimination to prevail under Section 1981. Under the current and familiar analytical framework used in Title VII’s disparate treatment cases, the question whether the plaintiff was intentionally discriminated against by the defendant is the ultimate issue in Section 1981 discrimination claims.

Uniformed Services Employment and Reemployment Rights Act (USERRA)

Disparate treatment claims brought forth under the USERRA entail allegations that the employer discriminated against a person or a group based on such a person’s or group’s military status (including assisting or giving testimony in a USERRA investigation, proceeding, or claim or exercising of a right under USERRA). As provided for under 38 U.S.C. § 4311 (c), the employer must provide substantial evidence showing that the discriminatory action would still have been taken even in the absence of such an obligation for service, application for service, application for membership, service, or membership in military and none was a motivating or contributing factor in the employer’s adverse employment action.

Immigration Reform and Control Act (IRCA)

As provided for under 28 C.F.R. § 44.200(a)(1), a discrimination claim brought under the IRCA must only show that the discriminatory action taken by the employer was both intentional and knowing. Thus, even if the employer was not aware that such an action violated the IRCA, an employee can prevail based on the fact that the employer’s actions were deliberate. Similarly, the traditional burden-shifting framework that the Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) is adopted when courts evaluate IRCA claims.

To establish a prima facie case of disparate treatment, the McDonnell Douglas factors required include:

  • Employee must have suffered an adverse employment action.
  • Employee should be a member of a protected class.
  • Employee must demonstrate some circumstances suggesting a discriminatory motive for the adverse employment action.
  • Employee was and is qualified for the position’s essential functions.

In Part X, we will hammer on “Disparate Impact Claims,” as recognized under these federal laws that apply to workplace harassment, discrimination, & retaliation in New York.

Until then, stay tuned for more legal guidance, training, and counsel. In the interim, reach us with questions or comments on our website at the Contact Us page!

Always rising above the bar,

Isaac T.,

Legal Writer & Author.