SECTION 335:15-13-11. Disparate treatment in employee selection

  The principle of disparate or unequal treatment must be distinguished from the concepts of test validation. A test or other employee selection standard–even though validated against job performance in accordance with the guidelines in this Subchapter–cannot be imposed upon any individual or class protected by the Act where other employees, applicants or members have not been subjected to that standard. Disparate treatment, for example, occurs where members of a minority, handicapped or sex group have been denied the same employment, promotion, or membership opportunities as have been made available to other employees or applicants. Those employees or applicants who have been denied equal treatment, because of prior discriminatory practices or policies, must at least be afforded the same opportunities as had existed for other employees or applicants during the period of discrimination. Thus, no new test or other employee selection standard can be imposed upon a class of individuals protected by the Act, who, but for prior discrimination, would have been granted the opportunity to qualify under less stringent selection standards previously in force.