Disparate Treatment

Disparate treatment occurs when members of a protected class are treated differently from similarly situated employees. The question examined is whether the employer's actions were motivated by discriminatory intent. Most employers won’t admit to treating an employee differently because of race, but it does occasionally happen. That rare case would be an example of direct evidence.

Most employees will have to use circumstantial evidence to show disparate treatment. To do so, an employee must point out how the actions of an employer infer racial discrimination in the workplace. The employer would then have to provide a reason, a non-discriminatory reason, for why they took the actions being disputed. Many employers will provide a reason that is nothing more than a pretext (something I’ve mentioned in previous posts) to hide their real motivation—discrimination. So, they will come up with a race-neutral reason to justify their actions.

An employee probably won’t be successful in proving disparate treatment, unless they prove that the reason provided by the employer is a pretext (a lie/cover story). Therefore, it’s important to document every meeting you participate in regarding your issue, to file away key pieces of evidence (e.g., memos and emails), and to maintain a list of witnesses, who can corroborate your position.

Employees must attack their employer’s stated and written positions/defense, line by line. Don’t leave out any relevant points or fail to point out any inconsistencies, no matter how minor the issue may seem. You must build a strong circumstantial case, if you don’t have direct evidence of disparate or unequal treatment at work.

FYI: An example of disparate treatment would be asking Black applicants to take and pass a special test, but Whites don't have to take this test at all.

Source: http://www.hr-guide.com/data/G701.htm