Intentional Discrimination and Disparate Treatment

According to the Department of Justice (DOJ), Civil Rights Division, a claim of intentional discrimination is one that alleges that similarly situated persons (e.g., coworkers in the same department, employees working under the same supervisor, employees—as a whole, etc.) are treated differently because of their race, color, or national origin. FYI: This information was written in relation to grant applications, but it is very appropriate in explaining discrimination anywhere--such as the workplace.

In order to prove intentional discrimination, an employee must show that "a challenged action was motivated by an intent to discriminate." Elston, supra, 997 F.2d at 1406. This requires a showing that the decision-maker (e.g., supervisor, manager, executive, etc.) was not only aware of the complainant's race, color, or national origin, but that the decion-maker acted, at least in part, because of the complainant's race, color, or national origin. However, the record need not contain evidence of "bad faith, ill will or any evil motive on the part of the [employer]." Elston, 997 F.2d at 1406 (quoting Williams v. City of Dothan, Alabama, 745 F.2d 1406, 1414 (11th Cir. 1984)).

Evidence of discriminatory intent may be direct [e.g., “You’re not getting this job because we don’t promote ni**ers here!”] or circumstantial [e.g., false allegations are used to deny a Black employee a promotion] and may be found in various sources, including statements by decision-makers [e.g., oral and written], the historical background of the events in issue [past patterns on executing similar actions, work history, etc.], the sequence of events leading to the decision in issue [How did everything happen?], a departure from standard procedure (e.g., failure to consider factors normally considered), legislative or administrative history (e.g., minutes of meetings), a past history of discriminatory or segregated conduct [as described in yesterday’s post on checking into prior bad acts], and evidence of a substantial disparate impact on a protected group [a significant change in the status of your employment, impact on your career or work environment, etc.]. See Arlington Heights v. Metro. Housing Redevelopment Corp., 429 U.S. 252 at 266-68 (1977) (evaluation of intentional discrimination claim under the Fourteenth Amendment); Elston, supra, 997 F.2d at 1406.

Direct proof of discriminatory motive is often unavailable. However, if the record contains sufficient evidence to establish a case of discrimination, the investigating agency must then determine if the employer can articulate a legitimate, nondiscriminatory reason for the challenged action. [Many employers can offer a pretext to hide their true discriminatory motives. This usually involves making false allegations against the complaining employee, creating manufactured/fabricated documentation against an employee, providing false eye witness statements of events, etc.]

Similar principles may be used to analyze claims that an employer has engaged in a "pattern or practice" of unlawful discrimination. Such claims may be proven by a showing of "more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts." See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977). The evidence must establish that a pattern of discrimination based on race, color, or national origin was the employer's "standard operating procedure the regular rather than the unusual practice." Id. Once the existence of such a discriminatory pattern has been proven, it may be presumed that every disadvantaged member of the protected class was a victim of the discriminatory policy, unless the employer can show that its action was not based on its discriminatory policy. Id. at 362.

So, if you’re facing rampant discrimination on your job, go for showing patterns of discriminatory behavior by your employer that shows the history of illegal conduct. Also, document everything and be ready to respond to the pretext/lies offered by your employer to justify any discriminatory actions that have occurred at work. Finally, be sure to point out how similarly situated employees (other coworkers with the same job classification, title, salary, etc.) were treated differently—and more favorably—than you were treated. Be sure to show how those differences impacted your career.

For instance, that you were denied training opportunities or a promotion or that you were severely reprimanded, while others were not. Don't forget that being denied the building blocks for a promotion is just as bad as being denied the promotion itself. So, lack of training opportunities, etc. can help prove discriminatory behavior and disparate treatment.

Source: Department of Justice, http://www.usdoj.gov/crt/grants_statutes/legalman.html#Intentional