Is Preferential Treatment Employment Discrimination?

Is Preferential Treatment Employment Discrimination?
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Everyone has experienced favoritism or preferential treatment at some point in their lives. Workplaces are not immune to preferential treatment, as many people simply click or find commonalities with others that they give special attention to and provide better opportunities. We all have the freedom to choose our friends and those we associate within our lives. However, there are certain circumstances under which preferential treatment or favoritism in the workplace can rise to the level of employment discrimination.

Understanding Preferential Treatment and Favoritism

Preferential treatment and favoritism exist when a manager or supervisor clearly demonstrates preferential treatment or additional positive rewards to one person over others that are based on their gender, race, ethnicity, age, sexual preference, or other protected class and do not relate to their performance. While it may seem unfair, it is not illegal for a person to hire someone’s family member, or even give preference to people they simply like better. However, if the preferential treatment rises to another level based on the fact that the manager or supervisor fails to promote or reward someone based on their age, ethnicity, race, or gender, their favoritism may be illegal. As you can imagine, making the distinction or designation when this occurs can prove legally challenging and complex.



When Preferential Treatment Is Illegal

Essentially, the litmus test to determine whether or not preferential treatment is illegal is whether it violates any state or federal law regarding a discriminatory practice. If an employer, manager, or supervisor treats an employee differently because of their age, disability, race, religion, gender, or sex, the preferential treatment or favoritism is illegal.

Illegal Discrimination

If an employer makes a decision regarding employment, promotion, bonuses, or other decisions related to the job it must be based upon the work done by the employee and not on any protected characteristics. For example, an employer does not have the legal right to hire a Christian person over a Jewish person simply because they are Christian or refuse to promote someone because of their race or gender.

Title VII of the Civil Rights Act of 1964 and the California Fair Employment & Housing Act prohibits any discrimination in the workplace related to these types of characteristics. In these circumstances, the preference has risen from simply favoritism to an illegal act of discrimination in the workplace.


PPC for Legal

Sexual Discrimination

The Equal Employment Opportunity Commission and California’s Department of Fair Employment & Housing Act require that if an employer shows preferential treatment against a female employee solely because of their gender this is an illegal act under federal law. If male employees receive better training opportunities, are promoted automatically or unfairly, or receive higher salaries for the same job performance, this would violate federal and California law. While certain men may find that other men have similar interests to them, they cannot extend preferential treatment to those men over women that have better or comparable job performance simply because they have common interests with men.

When romantic relationships occur in the workplace, especially between a supervisor and subordinate, it creates the risk of discrimination.  In these instances, favoring a romantic partner over another employee with a similar or better work performance record could also constitute discrimination under the law. Similarly, if a supervisor conditions employment benefit or a promotion on participating in sexual conduct or enduring harassment, then it is a blatant violation of Federal and California law prohibiting sexual harassment.

Illegal Retaliation

If a manager, supervisor, or employer punishes an employee as a result of their legal reporting of an illegal practice in the workplace, this will rise to the level of illegal retaliation. In these instances, if a supervisor or manager fails to promote or provide the same amount of compensation to a worker that engaged in whistleblowing actions or other protected forms of reporting of discrimination, harassment, unsafe working conditions, or other illegal activity, it will rise to the level of illegal retaliation.

Building a Discrimination Case Against an Employer

In order to build a strong case of discrimination against your employer for illegal discrimination, you must provide evidence that suggests that the discrimination was much more than simple preferential treatment or favoritism. As a result, you may need to have concrete examples of when another person received bonuses, additional compensation, access to training, or other benefits not afforded to you. It is helpful to show a pattern of discrimination either statistically or by using “me too” witnesses who have been subjected to similar discrimination and harassment.


Computer Forensics

At the end of the day, a supervisor, manager, and employer needs to make decisions that will benefit some employees and not others. Not all employees can receive promotions and bonuses. Therefore, some employees will receive preferential treatment and others will not. Whether or not this is an illegal action rests on whether the decision to promote or provide additional compensation to another employee is based upon an unlawful reason such as race, sex, gender, age, or the presence of a disability. Consider the following as you attempt to build a discrimination case based on employment discrimination:

  • Do you notice that the management or supervisors have a tendency to overlook or pass over people of a certain gender, sex, race, or age when making decisions regarding bonuses or promotions?
  • Do those persons that were passed over for promotions or employment opportunities have a better job performance record?
  • Does management have any history of sexual misconduct or discrimination in the workplace related to sexual harassment?
  • Does the employer have any judgments already against them for either illegal discrimination or sexual harassment?
  • Have you noticed that other employees also experience illegal discrimination or sexual harassment in the workplace?
  • Have you failed to receive any bonuses or promotions following a reporting of illegal activity or a whistleblower claim?

Essentially, to prove a strong employment discrimination case based on illegal activity, it must rise to a much higher level than simple favoritism or preferential treatment.  It is important to document any discrimination in writing and informing supervisors and human resources of the discrimination or harassment is an important building block of the case.

By giving the employer an opportunity to take corrective action and stop the discrimination and harassment, you can achieve the goal of working in a discrimination-free environment. If the employer does nothing or retaliates, an employment civil rights lawyer can help you achieve justice and fair compensation.

If you believe that your employer has engaged in illegal discrimination practices that far surpass simple preferential treatment of certain employees or favoritism, you may have the legal right to pursue compensation under the law. Contact our employment discrimination team to learn more about your legal rights in the workplace, and how you may have the right to pursue justice for the discrimination you experienced.

Jim DeSimone

Civil rights attorney V. James DeSimone, of V. James DeSimone Law of Marina del Rey, has dedicated his 36-year law career to providing vigorous and ethical representation to achieve justice for those whose civil and constitutional rights are violated

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