Employment Discrimination

Employment discrimination is basing employment decisions on criteria unrelated to the applicant's qualifications for the job, generally related to race, gender, ethnicity, and so on. In an effort to have employees and applicants for employment judged on the basis of their qualifications for the job rather than on the artificial basis of prejudgments about a group the employee or applicant may belong to, in the United States, it is illegal for an employer to discriminate against employees or applicants for employment on the basis of certain criteria set out in federal and state statutes. Under federal law, it is illegal for an employer to discriminate primarily on the basis of race, color, gender, religion, national origin, age, or disability. Employers cannot discriminate regarding workplace benefits or decisions for employees including their hire, termination, discipline, training, promotion, pay, job assignment, or any other term or condition of employment.

In the United States, there are laws prohibiting employment discrimination at the federal as well as the state level. Most states also have their own employment discrimination laws, generally called fair employment practice laws, which are virtually the same as the federal laws. While the state laws may be stricter than the federal laws, they cannot be less strict. Therefore, some state laws have added categories not included in the federal law or included less stringent thresholds for application of the laws (e.g., requiring an employer to have only 4 employees before the law applies rather than 15). Some states have added categories such as marital status, sexual orientation, physical appearance, or political affiliation as a basis for employment discrimination. State claims are generally handled by the state's fair employment practice agency.

Applicants or employees who believe that they have been victims of illegal discrimination have a right to take their claim to the enforcing agency to seek redress. For violation of federal laws, this is the [Page 710]Equal Employment Opportunity Commission (EEOC). Claims are handled by the EEOC free of charge (though if claimants wish to engage an attorney, they may do so at their own cost). Handling of claims may involve mediation, investigation, or adjudication, as appropriate. If the applicant or employee is not satisfied with the EEOC's final decision on the claim, he or she can then generally seek relief in a federal court. If the employee is found to have been discriminated against by the employer or someone working for the employer, he or she may receive as a remedy, as appropriate, reinstatement, back pay, front pay (for failure to hire because of discrimination), compensatory damages, punitive damages, restoration of lost seniority, injunctive relief, or other relief as the agency or court deems appropriate.

Employment discrimination claims must be based on the theory of disparate treatment or disparate impact. Disparate treatment is discrimination on the face of the employer's policy itself—that is, a policy that does not allow women to be hired for construction work or men to be hired as receptionists. While disparate treatment discrimination is deemed intentional discrimination, the discriminatory intent need not be stated by the employer and instead can be gathered from the policy itself.

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