Understanding the Fundamentals of Employment Discrimination

Understanding the Fundamentals of Employment Discrimination

Obviously, employment discrimination cases are much more complex than what can be outlined here, but a lot of misinformation and misconceptions exist about employment discrimination.  The purpose of this post is simply to outline some of the most basic elements of employment discrimination law.

Discrimination is only illegal if it is based on membership in a protected class.  The main protected classes are as follows, but there can be some variation by state or even city:

  • Race
  • Color
  • Sex or orientation
  • Religion
  • National Origin
  • Disability
  • Age
  • Citizenship
  • Genetic Information

There are two basic types of discrimination:

Disparate Impact.  Treating people exactly the same can be discrimination!  To prove that disparate impact discrimination has occurred, the following must be shown:

  • Proof that practice limits the employment of protected class
  • The employer must prove that test or policy is for job-related business necessity.
  • The employee must prove that a less restrictive alternative exists.

Example:    Fire department hiring new firefighters.  To be eligible, all applicants must take a physical strength and agility test by running an obstacle course where they drag hoses, climb ladders and chop down doors.  6 out of 10 men pass the test, but only 2 out of 10 women pass it.

Disparate Treatment.  This is the type of discrimination most people think of when discrimination is discussed.  It is treating people differently based on their protected class status.  To prove disparate treatment discrimination has occurred in hiring, the following must be shown:

  • Member of a protected group; and
  • Applied for and was qualified for the job; and
  • Was denied employment; and
  • After the denial of employment, the employer continued to seek applications.