By Dr. Gary L. Deel, Ph.D., J.D.
Faculty Director, School of Business, American Public University
Note: This article contains content adapted from lesson material I wrote for APUS classes. It is the first article in an eight-part series on employment discrimination law and sound employment practices.
The employment world is rife with legal obstacles for businesses in every industry. Among the most common and most damaging, however, are issues involving discrimination in employment decisions. Although discrimination is a problem in many aspects of society, it is particularly complex and challenging in the context of employment.
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How We Personally Define Discrimination Differs from How the Law Defines It
The most important thing to remember is that subjective interpretations of discrimination do not have any bearing on how the law defines discrimination. Our personal values and moral compasses, no matter how strongly they shape our own views, are not the measure of that which is right and wrong in the employment environment. They are certainly not the measure of what is legal or illegal.
Generally, United States law recognizes two similar yet distinct forms of discrimination: disparate treatment and disparate impact. Although the ultimate effect – favoritism of certain people at the expense of others – is the same, it is important to understand the difference between the two types. This way, potential violations are more easily spotted.
Disparate Treatment: Discrimination That Is Obvious and Intentional
Disparate treatment is a type of discrimination that is patently obvious and intentional. For example, if an employer adopts a policy of refusing to hire African-Americans because they are African-Americans, this is disparate treatment. The policy’s intent and effect is to discriminate.
Disparate impact discrimination, however, is much more subtle and often more difficult for employers to detect. One example of disparate impact discrimination was the literacy tests enforced as a condition for suffrage rights in the United States during the 19th and 20th centuries. Under these tests, individuals were prohibited from voting if they could not pass a basic literacy assessment.
But on the surface, these tests did not appear discriminatory; they applied equally to people of every racial group. However, it quickly became apparent that the effect of these tests was to significantly discriminate against African-Americans.
At the time of their use, the average African-American in the United States had a significantly lower education level than his or her white counterpart, due to the shameful history of slavery in our country. As a result, the literacy tests disproportionately barred African-Americans from the voting booths to the advantage of the white population.
Consequently, these literacy tests were later prohibited. Similar tests have since been forbidden from use on the basis that, even if a certain practice seems neutral, then it is illegal on the basis of disparate impact discrimination if it has the effect of discriminating against an individual or group.
The explicit political dispositions of the states that adopted these literacy laws and the dubious nature of the tests themselves, were conclusive evidence of their discriminatory intent. Racist lawmakers attempted to hide behind facially neutral legislative language, but the veil was paper-thin.
What Is Considered Illegal Discrimination?
But what types of discrimination are illegal, exactly? Is discrimination of any and every kind prohibited?
For example, let’s say that I’m an employer who refuses to hire people with bad attitudes. Am I breaking the law because I am discriminating against individuals with bad attitudes?
The short answer is no. But the full answer requires a lot of historical explanation.
The Civil Rights Act was passed in 1964, and it applies to all employers in the United States with 15 or more employees. Title VII of the Act – in addition to outlawing discrimination at voting polls, in schools, and in places of public accommodation – also prohibits employment decisions made on the basis of certain protected classes. The protected classes in the original Act were race, color, religion, national origin and gender, although gender was only protected in the employment context.
The Civil Rights Act was very much the product of the movement for racial equality led by Dr. Martin Luther King in the early 1960s. However, the law obviously prohibits more than simply racial discrimination.
The logical reasoning for the inclusion of the five attributes protected by the original law (and the exclusion of others) was that these attributes – with the exception of religion – are largely considered to be immutable characteristics. In other words, those immutable characteristics are qualities that cannot readily be changed at an individual’s discretion.
Racial Discrimination Is Definitely Prohibited in Employment
Racial discrimination is prohibited in all employment actions. Although the federal government asks individuals to name their races in initiatives such as the national census, any and all races are protected from discrimination.
The definition of race has further been interpreted to include ethnicities, such as an individual’s “Hispanic” or “Latino” heritage. Basing employment decisions on one’s marriage to or other affiliation with members of a particular race is also prohibited by law.
Certain grooming policies that create a specific disadvantage to a particular race – such as shaving policies covering African-Americans who suffer from pseudofolliculitis barbae – are also usually construed as discriminatory. In such a situation, discrimination occurs when reasonable accommodations for such conditions are not made whenever and wherever possible.
Human resources professionals should ensure that employment policies support the principle of racial equality. At the same time, employers should be aware that workplace rules regarding issues that relate to human biology, such as grooming, are sensitive to racial peculiarities.
Color Is Also Protected by Law
As with race, color is also barred as a basis for discrimination. Courts have generally construed “color” to mean a person’s skin color, shade or pigmentation.
Whether “color” legally extends to other attributes such as hair color or eye color is not entirely clear. Typically, natural hair color and/or eye color are closely correlated to one’s skin color and/or race, so any policy attempting to discriminate on these peripheral characteristics would likely be illegal forms of disparate treatment discrimination. Employers should ensure that all employment policies are neutral with respect to dimensions of color.
In the next part of this article series, we’ll examine the rest of the classes protected by the original 1964 Civil Rights Act, as well as their implications for employers.
About the Author
Dr. Gary Deel is a Faculty Director with the School of Business at American Public University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Public University, the University of Central Florida, Colorado State University and others.
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