Employment discrimination is what happens when an employee, or potential employee, is treated less favorably than similar employees solely because of certain characterisitics that they possess. These characteristics are known as protected classes, and include:

  • Age;
  • Race;
  • National origin;
  • Religious beliefs;
  • Gender;
  • Disability;
  • Pregnancy; and
  • Veteran status.

Employers may discriminate against individuals who belong to a protected class in several different ways, and in a range of employment settings. Examples could include but are not limited to:

  • Hiring;
  • Recruiting;
  • Training;
  • Job assignments;
  • Compensation;
  • Promotions;
  • Working conditions;
  • Disciplinary actions;
  • Referrals;
  • Termination; and/or
  • Harassment.

Employment discrimination can also occur when one group of employees are treated more favorably than another. An example of this would be a group of male employees receiving higher wages than a group of female employees, although all of the employees are equally qualified and doing equal work.

Under U.S. federal employment law, most private employers are prohibited from discriminating against protected classes. It is important to note that on a federal level, only protected classes are covered. State laws sometimes provide protections to additional classes, such as sexual orientation. Additionally, federal laws only apply to those who employ more than fifteen people, and do not apply to classes commonly covered by state law such as marital status.

What Is Unintentional Discrimination?

According to federal employment discrimination law, there are two different types of discrimination:

  • Disparate Treatment: Disparate treatment is what most people think of when they hear about employment discrimination. It is treating employees differently because they belong to a protected class. Disparate treatment is illegal under federal law, and may be referred to as intentional discrimination. An example of how this type of discrimination occurs a supervisior allows a group of employees to receive particular benefits, such as vacation time, but not all employees are entitled to the same benefits. This may happen over the course of employment, or all at once; and
  • Disparate Impact: Disparate impact may also be known as unintentional discrimination, and is generally based on policies. These policies may appear neutral, but they actually favor or disfavor one class of employees over another. An example of this would be a fire department implementing a written test to decide which employees should be promoted; although this test seems neutral, certain racial minorities are disfavored due to the fact that they cannot purchase study materials, and the test itself is not actually relevant to the job of firefighting.

Disparate treatment and disparate impact differ from each other, but are both variations of discriminatory employment practices. Disparate impact may be unintentional, but if an unintentionally discriminatory policy violates federal employment discrimination law, the company will still likely be liable for the results of their policy. Both disparate treatment and disparate treatment are illegal under federal discrimination law, which seeks to eliminate both types.

How Does an Employee Bring a Discrimination Lawsuit Under Federal Law?

For an employee to bring a discrimination lawsuit under federal law, they must first obtain a right to sue letter from the Equal Employment Opportunity Commission (“EEOC”). Additionally, they should check their state laws to see if their state has an agency similar to the EEOC that could provide direction and aid. Once the employee has obtained the right to sue, they must prove that the facts of the case establish discriminatory circumstances. This could include proving that:

  • That they, as an employee, belong to a protected class;
  • That they were at least minimally qualified for their job; and
  • That they suffered an adverse action due to the employer’s discrimination.

Adverse action refers to an action that creates a hardship for the employee. The most common adverse actions are termination of employment, pay cuts, being rejected for a promotion, and being involuntarily demoted or transferred to another department. If the alleged discrimination was unintentional, the employee will need to point out specific acts of discrimination, and link those acts to the adverse action.

The employer will be given the chance to respond to the allegations. The employee has the burden of proof, meaning they must disprove the employer’s response to the alleged discrimination. Additionally, there are federal caps on employment discrimination lawsuits. An attorney would be best suited to explain the process and options to an employee seeking a discrimination lawsuit.

What Else Should I Know About Federal Employment Discrimination Law?

Employers are legally required to make reasonable accommodations for their employees’ disabilities, or their religious observances. Failure to do so could be grounds for an employment discrimination action. However, the accommodation must not put a severe burden on the employer. If the accomodation does impose a severe burden on the employer, the employer is no longer required to make the accommodation.

If a person is unable to do the job they are applying for, due to their protected class, the employer may legally use that fact to refuse to hire them. This is known as the Bona Fide Occupational Qualification Defense, or “BFOQ.” This defense almost always applies to sex discrimination, but may also be associated with religion. It does not apply to race, color, or national origin.

Do I Need an Attorney for Assistance With Federal Employment Discrimination Law?

If you are facing workplace discrimination, you immediately should consult with a skilled and knowledgeable discrimination attorney. An experienced employment discrimination attorney can help you understand your rights at both the state and federal levels, as well as guide you through the claim filing process. Additionally, an attorney can represent you in court.