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Employment Discrimination: The Basics

Patrick Kelly

Many employees and employers misunderstand what constitutes illegal employment discrimination. This common misunderstanding often arises from uncertainty as to the distinction between legal discrimination and illegal discrimination.

When an employer decides that they will only interview high school graduates for a certain position; they are discriminating against potential applicants who did not graduate from high school.  Depending upon the duties of the particular job, it is unlikely that this minimum job requirement would be viewed as illegal discrimination.  Similarly, certain jobs require an employee to hold a specific license.  If the license is reasonably related to the particular job, this form of discrimination is also legal.  These types of discrimination are permitted because they serve an easily understood and rational relationship to an employer’s legitimate business interest.

People have a harder time accepting that an employer can discriminate for wholly personal reasons, even though such discrimination likely is legal.  For example, if an employee gets into an argument with his supervisor because of their differing political views, it would not be illegal for the supervisor to fire the employee.  While this may be a bad business or personal decision, it is not illegal.

The types of discrimination that generally are prohibited by law are types of discrimination based upon an employee’s membership in one of several specifically identified classes.  These classes include race, color, national origin, citizenship, religion, sex, age, disability, and military service.  In most locations, sexual orientation is not protected.  When an employer subjects an employee to an adverse employment decision because of the employee’s membership in one of the identified classes, they have illegally discriminated against that employee.

Employment discrimination is usually not conspicuous.  Determining whether an employer has acted with a prohibited discriminatory intent usually relies upon an examination of subtle clues.  Courts typically look to “comparators” in order to determine whether an employer has acted with a prohibited intent.  In other words, courts will look to the employer’s treatment of similarly situated applicants and employees to determine whether illegal discrimination has occurred.

For example, if an African-American employee who is 20 minutes late to work is fired but several white employees who also arrive at work 20 minutes late are only give written reprimands, then the employee who was fired can make out a case of discrimination.  At this point in litigation, it would fall to the employer to prove that they had a legitimate non-discriminatory reason for treating these employees differently.

Certain policies or procedures which do not appear to be discriminatory on their face but which have a disparate impact upon a protected group may also be illegal.  If an employer cannot show that there is a legitimate business reason for a restriction, then the policy may be improper.

Employers also are required to insure that members of a protected class are not subjected to a hostile work environment or harassment.  A common misconception is that harassment must be sexual.  That is not correct.  It is illegal if it is based on any protected class.  However, employment discrimination legislation is not intended to serve as a workplace civility code.   This means that minor conflicts, even if motivated by improper prejudices, typically do not constitute illegal discrimination.  In order to amount to discrimination, incidents of hostility or harassment must be severe and pervasive, i.e. name calling by a supervisor or sexual coercion.

An employer also engages in illegal discrimination when they retaliate against an employee for protecting their or another’s legal rights, provided those rights relate to the employee’s status within a protected class.  If an employer retaliates against an employee because they have filed a complaint with the Equal Opportunity Employment Commission, they have engaged in a form of illegal discrimination.

An employee does not have to file a formal charge in order to enjoy this protection, however, protection is  extended to employees who assist in an Equal Employment Opportunity Commission investigation as well as employees who oppose any type of activities that they reasonably believe to constitute illegal discrimination.  The employee’s opposition activity must not be insubordinate or unduly disruptive to the employer’s legitimate business interest; although respectful objections to employer’s discriminatory acts are typically protected.

Employment discrimination is a complex matter.  This summary of the legal landscape merely touches on its most obvious boundaries.  Often times, what first looks like illegal discrimination is not, and vice versa. Because of this, it is important for employers to consult with qualified legal counsel when confronted with issues involving potential discrimination.

 Patrick Kelly is an attorney with Glenn Feldmann Darby & Goodlatte – visit to learn more.

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