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Employers, Employees, and Employment Discrimination

Employer Discrimination

What Is Workplace Discrimination?

Workplace antidiscrimination statutes exist to ensure that persons who belong to certain protected classes receive equal treatment compared to people who are not in the protected class.

Employees have a right to be free of employment discrimination, meaning unequal treatment or harassment that takes place in the workplace as a part of the employment relationship. The cornerstone of discrimination in the workplace is the concept that if an employee is in a protected class, then an employer may not alter the terms and conditions of employment based on the fact that the person is in a protected class. These protections exist under federal law and typically under state law as well.

Protected classes under Title VII of the Civil Rights Act of 1964 include sex, religion, race, color, and national origin. It is illegal under this title for an employer to discriminate against an employee or prospective employee based upon these protected classes. For example, refusing to hire those of a certain religion is not permitted. Recent court cases, however, have been brought regarding the "reasonable accommodation" expected for religious beliefs. For example, in the 2014 Burwell vs. Hobby Lobby case, the court ruled that companies can have their own religious beliefs and potentially hire and terminate employees based on those beliefs.

Age is a protected class covered under the federal Age Discrimination in Employment Act (ADEA).

Protected Classes Under Federal Employment Discrimination Law

There are various classes of individuals protected under federal employment law.
When discussing discrimination, what is typically not permitted is discrimination in the terms of employment. These terms and conditions of employment may include pay, vacation time, sick time, pension and health benefits, hours, schedule, working conditions, and other issues. The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodation for employees with disabilities. This accommodation usually comes in the form of some type of assistance or restructuring in the workplace that will enable an employee to do the job despite having a disability. Examples include braille keyboards, screen magnifiers, dictation software, and ramp access and elevators for employees with wheelchairs. Minimum wage standards ensure that employees are compensated for their work to the minimum required by law.
Many factors, such as pay, health benefits, and working conditions, are considered terms and conditions of employment.
For example, if Bob is 70 years old, he is in a protected class due to his advanced age. If his employer reduced his pay and changed his position based on his age, this would be discriminatory. If his pay were reduced and position changed because he was late to work multiple times, this may be permissible, depending on the terms listed under company policy or perhaps a Collective Bargaining Agreement (CBA) for union employees. However, from a practical perspective, inclusion in a protected class and a corresponding change in working conditions (in this case, pay and position) are often enough to create the presumption of discrimination if his position were filled by a younger worker. In other words, the employer's excuse that Bob was late may be viewed as a pretext for the real motive (discrimination), and it is up to the employer to prove there was a legitimate motive.

Hiring Discrimination

Proving discrimination in the hiring process requires that four specific criteria are met.
Likewise, there are also whistleblower statutes (both state and federal) that deem it illegal to discriminate or retaliate against an employee for blowing the whistle on an illegal or unethical action of the employer, primarily regarding financial practices, unfair employment wage and hour practices, and workplace safety. The Sarbanes-Oxley Act of 2002 protects investors from the possibility of fraudulent accounting activities by corporations. OSHA, the Occupational Safety and Health Administration, ensures safety at work, with a mission to prevent work-related injuries and illnesses. For example, if Rebecca calls OSHA to report unsafe working conditions, under the whistleblower statutes, her employer is not entitled to retaliate by, for example, reducing Rebecca's pay.

Disparate Treatment and Disparate Impact

Certain types of treatment and tests allow entities and government administrative agencies to determine whether workplace discrimination exists.

Discriminatory treatment exists primarily in two forms: disparate treatment and disparate impact.

Disparate treatment happens when an employer treats an employee differently based on that employee belonging to a protected class. Disparate treatment is intentional. The example of Bob's employer reducing his pay because of his advanced age is an instance of disparate treatment.

Disparate impact, on the other hand, is when an employer's policies and procedures appear neutral but have an unintended consequence of treating an employee in a protected class differently from others. Disparate impact is unintentional. An example would be a policy requiring all employees to perform a task in a given amount of time. It may be that an older employee requires additional time because of their age. While neutral on its face, the policy had the unintended consequence of discriminating against older employees.

Because disparate impact discrimination often happens without an employer's direct knowledge, it is important for business leaders to be aware of the potential for it.

It is also important to have an open line of communication between employees and the employer. This allows employees to report when they believe they are being treated unfairly. The company can then investigate to determine if any disparate impact discrimination has occurred.

Disparate Treatment versus Disparate Impact

Disparate Treatment Disparate Impact
What Is It? When an employer treats an employee differently based on a protected class When an employer's policies and procedures appear neutral but have an unintended consequence of treating an employee in a protected class differently from others
What Is the Motive? Intentional Unintentional
What Is an Example? Jenna's employer cuts her pay because she belongs to a certain religion. Jenna's employer sets a new policy docking the pay of all employees who refuse to work on Saturdays. Jenna's religion forbids her from working on Saturdays. While neutral on its face, the policy had the unintended consequence of discriminating against employees who belong to a certain religion.

In order to avoid discrimination lawsuits, business leaders need to understand the differences between disparate treatment discrimination and disparate impact discrimination and be aware of both types of unequal treatment in their workplace.

Depending on the action, it can be difficult to determine if an action is discriminatory. One test is whether a member of a protected class is treated the same or differently from another, similarly situated employee. If so, then a court could make a finding of discrimination.

Sexual harassment is use of abusive language, bullying, coercion, or discrimination related to sexual advances or sexual discussion. In these cases, the plaintiff must prove evidence of discrimination. Then the burden shifts to the employer to show a legitimate nondiscriminatory reason for the action. The plaintiff will prevail if the plaintiff can show the defendant's reason is just a pretext. It can be in the form of quid pro quo harassment, in which an employee is told they must do something or a negative employment outcome will result. It can also be in the form of a hostile work environment, where sexual advances or discussion make working conditions intolerable for employees.

Forms of Sexual Harassment

Quid Pro Quo Harassment Hostile Work Environment
What Is It? When an employee is told to do something in exchange for something else The creation of an intolerable workplace because of sexual advances or discussion
What Is an Example? Marta tells an employee, "Go on a date with me, or I'll fire you." Sheila faces so many sexual advances and comments that it is impossible for her to come to work anymore.

With regard to sexual harassment, there are two distinct types: quid pro quo and hostile work environment. Either or both types can result in a lawsuit.