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Discrimination on the Job—An Overview

The laws governing discrimination in the workplace are based on both constitutional prohibitions, and on state and federal statutes. As a general rule, discrimination is defined as the practice of treating a group of people differently.

The U.S. Supreme Court has established certain tests for determining whether disparate (different) treatment of a group is discriminatory and illegal. If the treatment is based on what the law refers to as a “suspect classification,” the disparate treatment will be subject to “strict scrutiny.”A suspect classification is some characteristic of the victim, typically immutable (one that cannot be changed, such as age, gender or race), that has no bearing on the person’s ability to perform his or her job. Under current Supreme Court rulings, there are four traits that are considered suspect classifications: race, national origin, religion and alienage (the status of being an alien).

The courts have also identified what are known as “quasi-suspect classifications,” including gender and legitimacy of birth. Actions based on either of these characteristics are subject to “intermediate scrutiny.”

If the basis for the disparate treatment is neither suspect nor quasi-suspect, the court will only concern itself with whether or not there was a “rational basis” to treat the group differently. Disparate treatment based on disability, political affiliation, age, wealth or status as a felon—all are subject to the rational basis test.

The Two Types of Discrimination Claims

You can seek relief from the acts of your employer based on either disparate treatment or disparate impact.

In a disparate-treatment claim, you must show that your employer treats you differently than similarly situated employees. You must demonstrate that

  • You are a member of a protected class under the law,
  • You were qualified for a raise, promotion, benefit or other work-related opportunity
  • You were denied the work related opportunity
  • Your employer gave the benefits to similarly situated persons from non-protected classes.

In an action alleging discrimination based on a disparate impact claim, you typically allege that a policy of practice of your employer has negatively affected you based, even though the practice may seem fair to all employees. For example, your employer may make working Saturdays mandatory for promotion, knowing that, because of your religious beliefs, you cannot leave your home on Saturday.

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.

Harassment

Claims of harassment (sexual, race-based, religious or other) fall under the law of discrimination. To constitute harassment under the law, conduct must generally be unwanted, offensive and either severe or pervasive. Participating in the conduct (even laughing at the jokes) may be used as evidence 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.

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.