The word “discriminate” means “to note or observe a difference; distinguish accurately.” (Dictionary.com.) Unlawful employment discrimination references a different definition: “to make a distinction in favor of or against a person or thing on the basis of the group, class, or category to which the person or thing belongs rather than according to actual merit.” (Dictionary.com.)
Federal, state and local laws prohibit employers of certain sizes from distinguishing among their employees because of their membership in a particular group or class. The main federal anti-discrimination law, Title VII of the Civil Rights Act of 1964, applies to companies with 15 or more employees. State or local laws, however, can apply to companies with as few as 1 employee.
Title VII prohibits employers from making business decisions, such as who to hire, who to promote, what compensation to provide, who to fire, because of an employee’s sex, race, color (skin lightness or darkness), national origin, and religion. Other federal laws address employment discrimination on the basis of age, disability, pregnancy, genetic information, and citizenship. State and local laws often extend these categories to include such as marital and/or familial status, sexual orientation, veteran’s status and gender identity. Taking employment action in favor or against a person because of his or her membership in a category protected by a law applicable to the location of a business would be discriminatory and therefor unlawful. Businesses would be prudent to focus on merit and ability, making employment decisions because of an employee’s production record, accomplishments, demonstrated leadership skills, years on the job, or other business-related reason. Failure to do so can embroil a company in a litigation alleging wrongful discriminatory termination, wrongful failure to hire, or other discrimination allegation.
Employees can claim they were subjected to one of two types of discrimination – disparate treatment and disparate impact. “Disparate treatment” discrimination is wrongful, discriminatory treatment of an employee with the intention of treating the individual differently because of his or her protected category. For example, an employee claiming that she was let go because she is Hispanic is complaining of disparate treatment discrimination.
“Disparate impact” discrimination can occur when an otherwise neutral policy or practice has the impact of discriminating against a group of individuals because of their membership in a protected category. An example is a high-school diploma requirement for a position that has the effect of precluding African-Americans from that job, when that requirement is not actually job related. In a famous case, Griggs v Duke Power Co., decided by the U.S. Supreme Court in 1971, that requirement effectively kept African-American applicants from certain roles because they lacked a diploma—although they were otherwise qualified for the job. “Disparate impact” discrimination need not be intentional for an employee to have a successful claim. A company fighting such a claim would need to show that the requirement that had a discriminatory effect was reasonably related to the job.
Employment lawyers have experience advising companies on actions to take to avoid discrimination claims, and they defend businesses against employment discrimination lawsuits when they occur. Companies of any size would be prudent to seek employment counsel to ensure their employment policies and practices avoid discriminatory actions and effects.