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Employment Discrimination

The two types of discrimination claims are disparate-treatment claims and adverse-impact claims. Disparate treatment claims are the most common.

Disparate Treatment

In a disparate-treatment claim, the employee claims that the employer treats him or her differently than similarly situated employees. To prove such a claim, the employee must show:

  • he or she is in a protected class under the law,
  • he or she applied for a job or promotion for which he or she was qualified,
  • he or she was rejected,
  • the employer continued to seek other applicants from non-protected classes.

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This is the basic outline for what a plaintiff must prove in any discrimination case, regardless of the specific discrimination claim. It also applies not just in failure-to-hire cases but also to termination, demotion, pay reduction and any scenario that is the result of discrimination.

Regardless, even if an employee proves these four items, he or she is not guaranteed to win the case. The four items are a minimum of what must be shown in court, and the vast majority of discrimination cases require more proof to be successful.

Harassment

Harassment is a type of disparate-treatment claim. It involves someone being harassed because of a certain status (age, race, disability, religion, etc.). To be classified as harassment under the law, the conduct must be unwanted, offensive and either severe or pervasive. For example, in the context of race, in which harassment most often occurs (outside of sexual harassment), telling racial jokes or making racial slurs is considered severe or pervasive, especially if done on a continual basis.

It is important to remember that the conduct must be unwanted. Participating in the conduct (even laughing at the jokes) could show that the conduct was not unwanted. Additionally, isolated incidents of derogatory comments or joke-telling do not rise to the level of harassment.

Two important caveats to the law of harassment should be noted. First, the offender does not have to be directly employed by the employer (e.g., he or she could be an independent contractor). Second, the employee complaining of the harassment does not have to be the target of the jokes or derogatory comments. It is enough that the employee hears the remarks and that the remarks interfere with his or her work.

Adverse Impact

In an adverse-impact claim, an employee is claiming that some practice of the employer has adversely affected him or her, even though the practice seems fair to all employees on its face. A famous case from the Supreme Court best illustrates this point: In Griggs v. Duke Power Co., the employer had a policy that applicants for certain jobs must have a high school diploma. The Court invalidated the policy because it adversely affected black applicants, who possessed high school diplomas at about half the rate of white applicants, and bore no relationship to the actual job performed. The policy, therefore, had an adverse impact on black job applicants.

Courts have consistently held that certain hiring requirements are valid when they are rationally related to the occupation. For example, a high school diploma requirement for police officers has been upheld because police officers often engage in activities that require certain knowledge and skills likely to be possessed only by those with at least a high school diploma.

Filing a Claim

When a person claims discrimination in the workplace, he or she must file the claim with the Equal Employment Opportunity Commission by filling out a questionnaire designed to elicit necessary information relating to the claim.

Generally, a person claiming discrimination has 180 days from the date of the alleged discrimination to file his or her claim. The 180-day requirement may be extended if the discrimination is also prohibited by state law.

The process for federal employees is different. They have 45 days from the event to speak with an EEOC counselor. Counseling must be completed within 30 days, and some form of alternative dispute resolution (such as mediation) must be completed within 90 days. If dispute resolution is not successful, the employee may file a complaint and then follow the same complaint process as a non-federal employee.

After the claim is filed, the EEOC will conduct an investigation. Depending on the merits of the claim, the EEOC will either pursue the claim or notify the claimant that not enough evidence of discrimination exists.

Last updated: Nov. 5, 2008

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