Anti-harassment and discrimination law aims to eliminate discrimination, harassment, and retaliation in the workplace on the basis of race, color, ancestry, gender, age, pregnancy, disability, military status, or religion. Some common signs of employment discrimination are easy to spot—particularly when you are subject to different treatment than your coworkers or denied an employment opportunity due to your membership of a protected class. However, facially-neutral employment policies that nevertheless result in homogenous workplaces or glass-ceilings for certain demographics may also be the subject of an employment discrimination lawsuit.
Accordingly, it is important for working people and employers alike to understand the different types of employment discrimination: disparate treatment and disparate impact.
Federal and state employment law prohibits intentional acts of discrimination, harassment, or retaliation on the basis of a protected class in the workplace. This direct and more blatant form of discrimination is referred to commonly as “disparate treatment.” To prevail on a claim of disparate treatment, a worker must show that the employer’s alleged discrimination, harassment, or retaliation was intentional and motivated by animus towards the worker due to his or her membership of a protected class.
Federal and state employment law also outlaws facially-neutral employment policies or decisions that tend to negatively effect members of a protected class at a disproportionate rate. Under a theory of “disparate impact” discrimination, a worker does not need to show that the employer intended to discriminate on the basis of the worker’s membership of a protected class, but that the policy or decision nevertheless does so without a legitimate business interest justifying it. Accordingly, disparate impact discrimination is sometimes referred to as “unintentional discrimination.”
Disparate impact claims generally center around hiring or promotion criteria that, in practice, exclude applicants from a protected class. Accordingly, while a workplace or management team with minimal diversity may be the result of a legitimate business need, it also may be the product of a process that unfairly excludes others of otherwise deserved employment opportunities.
It must also be noted that members of both minority and majority demographics are protected by employment discrimination laws. Businesses may also open themselves up to disparate impact liability through over zealous affirmative action efforts aimed at creating a diverse workplace when these affirmative action policies begin to disproportionately exclude majority demographics on the basis of their membership in a protected class.
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At The Law Offices of Nicholas A. Kulik, we are dedicated to protecting workers’ rights and ensuring that business owners craft employment policies that foster diversity and are inclusive of the entire workforce. Whether you’re an employee who may be facing either type of employment discrimination or an employer who wants to ensure that your hiring and promotion policies comply with employment discrimination law, it is important to consult with an experienced employment attorney. We welcome the chance to review the facts of your case and find a solution that makes sense for you.