Two types of employment discrimination exist: disparate treatment and disparate impact. The most common type, disparate treatment, occurs when an employee alleges discrimination that is intentional. The employee claims that some other coworker is treated preferentially and the employee belonging to a different protected class is the reason for that difference.
To prove disparate treatment through circumstantial evidence, the employee filing the discrimination lawsuit needs to meet the four elements of the McDonnell Douglas Corp. v. Green legal framework.
1. Employee belongs to a protected class.
The employee needs to show that he or she belongs to a protected class under Title VII of the Civil Rights Act of 1964. The employer cannot discriminate on the basis of the employees national origin, sex, religion, disability, age or race.
2. Employer knew of the protected class.
The employer needs to have awareness of the employees membership in a protected class under Title VII. Sometimes, this knowledge is not readily obvious such as someone’s national origin or religion.
3. Employee suffered an adverse employment action.
The employee needs to prove that the employee was subjected to some harmful, discriminatory act. This can include the employee being reprimanded, fired, suspended or denied a bonus or promotion.
4. Employee has some other evidence of discrimination.
If another employee in an employment situation nearly identical to that of the person filing the lawsuit was treated more favorably or did not suffer the same adverse employment action, then this is evidence of discrimination.
After the aggrieved employee shows that his or her case meets these four elements, then the employer needs to show a legitimate, non-discriminatory reason for the actions. Subsequently, the employee has the opportunity to show that this reason offered by the employer is just a pretext for the discrimination alleged.