Unlawful Discrimination

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 What Is Unlawful Discrimination?

Unlawful discrimination is discrimination that occurs by treating an individual unfairly or unequally based upon certain characteristics, including:

  • Age;
  • Disability;
  • Gender;
  • Race;
  • Religion; or
  • National origin.

Individuals with these characteristics are considered in a legally protected class. Under discrimination laws, if an individual is discriminated against based on these characteristics, they may have a legal right to sue.

What Is a Protected Class?

The concept of protected class or protected group is commonly associated with anti-discrimination lawsuits. A protected class is a group of individuals who qualify for certain special protections under policies or laws.

One example is the Civil Rights Act of 1964, which is an anti-discrimination law that protects certain groups of individuals. Under this act, and other federal anti-discrimination laws, for example, the Age Discrimination in Employment Act and the Americans with Disabilities Act, an individual may not be discriminated against based on certain characteristics:

  • Age;
  • Race;
  • National Origin;
  • Religious Beliefs;
  • Gender;
  • Disability;
  • Pregnancy; and
  • Veteran Status.

The Civil Rights Act also created the Equal Employment Opportunity Commission (EEOC), which is an independent federal agency that oversees the enforcement of the Act as well as other federal anti-discrimination laws as they apply to employment. In addition to these federally protected classes, there are many states that have their own anti-discrimination laws and policies that may be broader than their federal counterparts.

In other words, some state laws may protect more individuals than the federal laws. For example, in some states, there are laws that protect individuals on the basis of:

  • Gender identity;
  • Sexual orientation;
  • Political ideology; and
  • Service in a state militia.

It is important to note that, although state laws may provide more protections than federal laws, they cannot provide fewer protections than federal laws. A private employer may also enact policies to protect their employees from discrimination or harassment in the workplace based on certain statuses such as:

  • Marital status;
  • Gender; or
  • Sexual orientation.

What Are Examples of Discrimination Against Protected Classes?

Discrimination may occur in many different forms, including:

  • Harassment;
  • Racial slurs;
  • Derogatory remarks; or
    Unwanted personal touching or attention.

Examples of discrimination may include, but are not limited to:

  • An individual being denied a marriage license when they attempt to marry another individual of the same gender;
  • A registered voter being treated differently from other voters at a polling place based on their:
    • appearance;
    • race; or
    • national origin;
  • An employee over the age of 40 being denied a promotion at work due to their age, despite being fully qualified for the job; or
  • An employee who is subjected to teasing and harassment at work based on their gender.

What Is not Considered a Protected Class?

Although discrimination may occur in all types of groups, not every group of individuals is a protected class under the law. If an individual is not a member of a protected class, they may not be protected under federal or state anti-discrimination laws.

Groups of individual that are not considered to be members of a protected class include:

It is possible that individuals may discriminate against others based on their education level or criminal record. However, since these are not categories of protected classes under the laws, the individual may not qualify for certain protections under the anti-discrimination laws.

Not every instance of unfair treatment qualifies as discrimination under the law.

Where Does Unlawful Discrimination Usually Happen?

Unlawful discrimination may occur in many different settings. State laws and federal laws prohibit discrimination many different areas, including:

  • Housing;
  • Education;
  • Employment;
  • Health care services;
  • Government benefits;
  • Government services;
  • Voting;
  • Public accommodations;
  • Land use;
  • Land zoning;
  • Lending money;
  • Lending credit; and
  • Transportation.

What Are Some Common Examples of Workplace Discrimination?

Employers are not permitted to discriminate when providing work privileges or imposing work conditions. In addition, they are not permitted to discriminate when determining:

  • Wages;
  • Bonuses; or
  • Time off.

Common examples of workplace discrimination include, but are not limited to:

  • Hiring, firing, or forcing retirement of an employee based only on their protected class;
  • Refusing to hire a job candidate based on their protected class;
  • Using language in job advertisements and recruitment materials that will deter candidates of protected classes, such as stating that the applicant must be able to lift a certain amount of weight when that is not relevant to the position;
  • Granting benefits to one group but not another, despite the fact that both groups do the same type of work;
  • Withholding salary or wages;
  • Decreasing health and medical benefits to employees who belong to a protected class;
  • Forcing an individual to work under harsh or unreasonable conditions;
  • Requesting that an employee to waive their right to sue in exchange for severance pay at the end of their employment; and
  • Disputes over hours worked, for example, denying overtime and vacation pay when they would otherwise be entitled.

In addition, an employer is prohibited from engaging in harassment or any other action that would contribute to a hostile work environment. It is important to note that this may include the actions of coworkers as well as employers.
An employer is prohibited from retaliation against an employee for:

  • Whistleblowing;
  • Reporting harassment or discrimination;
  • Filing a lawsuit;
  • Joining a union; and
  • Participating in an investigation of workplace discrimination.

An employer is not permitted to exclude certain applicants from employment advertisements based upon their protected class or to show a preference. In addition, they may not give or offer a promotion solely to individuals with certain preferred characteristics as opposed to any employee who has earned them.

Employment discrimination laws are being expanded to include more classes and categories. For example, sexual orientation and gender identity are being considered more frequently in terms of anti-discrimination laws and policies.
Every state may have its own specific provisions that may differ from other states.

What Is Lawful Discrimination?

Lawful discrimination, or legal discrimination refers to treating an individual unequally or unfairly based on status or characteristics unrelated to civil rights. For example, a landlord may lawfully discriminate against pet owners by refusing to rent property to them.

What Is Unintentional Discrimination?

Unintentional discrimination is an issue that often arises in business settings. An employer may intentionally institute a policy that has a disparate impact on a protected class.

A disparate impact means the policy adversely affects a particular class of individuals by singling them out. The intention to discriminate is not relevant.

In many situations, an employer can be legally liable for discriminating against a certain class of employees regardless of their intent.

Is Reverse Discrimination Unlawful?

Yes, reverse discrimination is unlawful. This occurs when a class that is otherwise unprotected is discriminated against based on their historical privilege. This type of privilege means they have not been discriminated against in the past, for example, based on their gender or race.

Should I Discuss Unlawful Discrimination with an Attorney?

Discrimination can occur in many settings and is not always easy to recognize. If you believe you have been discriminated against, it is important to consult with a discrimination lawyer as soon as possible.

Your lawyer can help you determine if discrimination occurred and advise you of the laws in your state as well as the remedies that may be available to you. Your lawyer can also help you file a complaint with the proper agency and a lawsuit, if necessary.

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