Disparate treatment is the kind of discrimination most people picture when they hear the word: a decision driven by bias against a protected group. Proving it in court isn't as simple as the concept suggests because discriminatory intent is rarely captured in a memo. Plaintiffs and employers spend most disparate-treatment cases arguing about circumstantial evidence, inconsistent application, and whether the employer's stated reason for the action is the real one. Understanding how these cases actually play out is what turns a defensible decision into one that stays defensible in court.
The Two Paths to Proving Disparate Treatment Direct evidence cases are rare but devastating. A manager who says "we don't promote women to that level" or who writes in an email "the department is too old, we need younger energy" has given the plaintiff direct evidence. These cases rarely require the full burden-shifting framework because the intent is on the record.
Circumstantial evidence cases are more common and follow the McDonnell Douglas framework. Step one: plaintiff establishes a prima facie case by showing membership in a protected class, qualification for the job or benefit, adverse action, and circumstances suggesting discrimination (such as the position going to someone outside the protected class). Step two: the employer articulates a legitimate, non-discriminatory reason for the action. Step three: the plaintiff can still win by showing the employer's stated reason is a pretext, not the real motivation.
What Counts as Pretext Pretext evidence comes in several forms. Shifting reasons (the employer gave one reason in the termination meeting, a different reason in the position statement, and a third reason in deposition). Inconsistent application (similarly situated employees outside the protected class weren't treated the same way). Temporal proximity (the adverse action followed soon after a protected activity like a complaint). Departures from normal procedure (this case was handled differently than others). Each strand of pretext evidence is rarely enough on its own, but together they can support a finding that the stated reason isn't the real one.
How Does Temporal Proximity Actually Work? Courts give weight to adverse actions that closely follow protected activity (a complaint, an ADA accommodation request, FMLA leave). Actions within 30 days draw strong inferences of retaliation or disparate treatment. Actions within 90 days draw meaningful inferences. Beyond six months, temporal proximity alone usually isn't enough. Documentation of the underlying performance or conduct issue predating the protected activity is the standard defense.
Where Disparate-Treatment Cases Come From Most disparate-treatment cases come from a handful of decision points. Termination decisions where the stated performance reasons look thin. Promotion decisions where the selected candidate is a less-qualified member of the majority group. Compensation decisions where pay gaps across demographic groups can't be explained by legitimate factors. Discipline decisions applied inconsistently. And hiring decisions where rejection reasons look pretextual. Each decision type benefits from documented criteria applied consistently.
Building HR Practices That Defend Against Disparate-Treatment Claims Four practices move the needle. Document decisions contemporaneously with specific facts, not conclusions. Apply policies consistently across similarly situated employees, and audit for consistency periodically. Train managers to make decisions based on job-related criteria rather than cultural fit or gut feel, both of which can encode bias. And centralize the record so patterns become visible. AllVoices' HR case management and investigations management tools let employee relations teams demonstrate consistent treatment across cases, which is the single strongest defense against a disparate-treatment claim. The companies that prepare for these cases proactively tend not to lose them.
The EEOC enforcement guidance library covers the McDonnell Douglas framework and disparate-treatment analysis. The Department of Labor's Office of Federal Contract Compliance Programs covers related federal-contractor obligations at dol.gov/agencies/ofccp .
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