Differential treatment occurs when an employee is subjected to adverse employment action because of his or her race or national origin, e.g., if the employee is not hired or is fired because he or she is Asian or African-American. More subtle differential treatment occurs when the employer has a policy or practice which inherently discriminates against members of a particular ethnic group. For example, if the employer requires all employees to meet certain height and weight requirements, people of Asian descent (who are statistically lighter and smaller than individuals in other ethnic groups) will be disproportionately affected by this rule. For an employer to legally maintain such a policy, the height and weight requirements must be clearly related to the physical demands of a particular job (such as constant heavy lifting of objects onto high shelves).
Also, an employer may not physically segregate employees based on race. An employer may not group or categorize employees so that certain jobs are generally held by minorities. An employer may not exclude minority employees from certain positions or relegate employees to a certain location or neighborhood based on the minority presence in that locale. An employer may not pay one worker less than another worker based on race when both employees are working the same job.
The perpetrator of differential treatment may be anyone who has supervisory power over the employee or who can effect changes in the individual's employment.
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