How Do I Prove Discrimination in Pennsylvania? Disparate Treatment Cases

WHAT IS DISPARATE TREATMENT UNDER TITLE VII?

To make things easy here, I am going to apply the legal principles at issue to a claim of discrimination based upon sex.
 

In order to prove your disparate treatment sex discrimination claim, one must prove 1) that a Comparator was male; 2) that a Comparator had a position within the company that was nearly identical to yours; 3) the Comparator must have engaged in (mis)conduct) that was similar to that you are being accused of; 4) you must have been subjected to “adverse employment action” as a result of your alleged misconduct; 5) the employer must have been made aware of the Comparator’s alleged misconduct; 6)  your Comparator must have been subjected to lesser adverse employment action than you were. 

WHO IS A COMPARATOR UNDER TITLE VII?

Let me break this down into bite-size pieces.

First, the Comparator must be of a different sex (or race,sex, national origin, etc.) than you are.

Second, the Comparator must be employed in the same or virtually same position that you are. If you are a Manager, and your proposed comparator is and hourly employee, that person is not a “Comparator.”

Third, the alleged misconduct you engaged in must be similar to that of your Comparator.  If you were 45 minutes late 3 days in a row, and your proposed Comparator was 5 minutes late on one occasion, that person is not your Comparator.

Four, in order to have a claim you must have been subjected to adverse employment action, i.e. suspended, demoted, passed over for promotion, fired, etc.  It has to be material employer discipline, i.e. not a write up, or a stern talking to, etc.

Five, since the issue is employer choice to favor one employee over another (i.e. discrimination), the employer must have been made aware of the Comparator’s alleged misconduct.  So, for example, if the employer knew that you were late on three occasions, but did not know your proposed comparator was also late on 3 occasions in the past, the employer did not make a choice, and therefore you cannot prove disparate treatment.

Six, and finally, if all other conditions are met, you must prove that the Comparator was subjected to less harsh employment discipline then you were.

DO I HAVE A CASE FOR DISPARATE TREATMENT DISCRIMINATION?

Most clients who desire to file a lawsuit want (or can only afford) a contingent fee lawyer.  From a lawyer’s perspective, we are looking for contingent fee cases. That means a significant loss of employment income.  Hence, we likely will not take a “case” where the employee was suspended for 5 days, no matter how appealing the other facts are.  Nonetheless, if such an event takes place, you should seek an attorney out for guidance.  The lawyer may feel, for example, that filing a Charge with the EEOC or registering a complaint with HR is in order.  Thus, while you may not have an immediate case, you may been in a position to take action to protect your future employment rights.   

John A. Gallagher is an employment lawyer who represents employees in Pennsylvania.

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