So, you probably know that employment
discrimination is illegal.
But do you know all the ways that illegal
employment discrimination
happens in the workplace?
Well, you're in luck.
I'm an employment lawyer,
and in this video, I'm going to detail
the different theories of discrimination.
That is all the ways that illegal
discrimination happens in the workplace.
So, stick around.
[MUSIC] Before I begin,
nothing in this video is legal advice.
If you think you were discriminated
against at work, talk to an employment
lawyer in your jurisdiction.
If you're in Washington State,
feel free to reach out to my firm.
The link to my website is
in the description below.
Okay, let's get to it.
So, before we talk about all the ways
that employment discrimination arises
in the workplace, let's talk a little bit
about how the law defines discrimination.
It will be important
later in our discussion.
To do that, we'll first look at the law.
Our protections against discrimination
arise originally in the
Civil Rights Act of 1964.
Most states have also enacted their own
anti-discrimination statutes that
supplement the Civil Rights Act of 1964.
But all workplace discrimination is based
on the same language originating
in that Civil Rights Act of 1964.
The specific part of the Civil Rights Act
that we'll be looking
at is called Title VII.
And specifically, we'll be focusing
on Section 703, Subsection A.
That section reads,
"It shall be an unlawful employment
practice for an employer to discriminate
against any individual with respect to his
compensation, terms, or conditions, or
privileges of employment, because of such
individual's race, color,
religion, sex, or national origin."
So, to put it simply,
Title VII's anti-discrimination provision
outlaws discrimination in compensation,
terms or conditions of employment,
or privileges of an employment
because of protected characteristics.
But that discrimination can
happen in any number of ways.
So, let's talk about each way that that
discrimination can arise in the workplace.
So, there are three main theories
of discrimination that, if they occur,
they trigger the protections of Title VII
or the protections of the state-specific
statute that outlaws
discrimination in your state.
These three theories of discrimination are
known as the following: first,
disparate treatment; second,
disparate impact; and third,
hostile work environment.
So, let's outline all three of them,
and I'll provide some examples too.
So first,
we'll talk about disparate treatment.
Now, disparate treatment is the most
obvious form of discrimination.
It's the type of discrimination you
probably think of when you think
of employment discrimination.
It simply means that an employer took
an adverse action against an employee
because of that employee's
protected characteristics.
That adverse action can be discharge,
demotion, change in benefits,
change in compensation,
failure to hire or failure to promote,
or anything else that changes the worker's
terms or conditions of employment.
Remember back to our
language from Title VII.
It needs to change the compensation,
terms, conditions,
or privileges of employment because of
the employee's protected characteristics.
And disparate treatment can be a difficult
form of discrimination to prove because it
requires discriminatory intent
on the part of the employer.
The employer must have the intent
to discriminate against the employee
because of the employee's
protected characteristics.
Now, the employee's protected
characteristics need not be the only
motivation for the employer's decision,
but it needs to be a motivating factor.
In Washington law, we call
that the substantial factor test.
An example of disparate treatment
discrimination would be a hiring manager
refusing to hire a woman based on his
concern that the woman will have to take
time off later in her employment
to take care of her child.
He took an adverse action against
the woman by failing to hire her.
She was in a protected group because sex
and gender is a protected characteristic,
and he was motivated by her
protected characteristic.
The next theory of discrimination is known
as disparate impact,
and it occurs when an employer has
a seemingly neutral policy
that negatively and disproportionately
impacts workers who are
members of a protected group.
Unlike disparate treatment,
disparate impact does not
require discriminatory motive.
Instead, affected employees need only show
the consequences of that neutral policy
and how they fall more harshly
on the protected group.
For example,
in a case here in Washington State called
Kumar versus Gate Gourmet,
the employer had a policy of not allowing
workers to bring lunch to work, and
instead providing the workers their lunch.
The problem was that the employer failed
to provide vegetarian options,
and a group of these employees were
members of a religious group
who could not consume meat.
So, the company's policy forced these
employees to either consume meat in
violation of their religion or go hungry.
So, while the policy didn't explicitly
discriminate against any group,
it fell more harshly on this protected
group because religion is
a protected characteristic.
The policy had a discriminatory impact
on the terms or conditions of employment
because being able to have lunch
at work is a condition of employment.
Now, the final theory of discrimination is
called hostile work environment,
but this form of discrimination is most
commonly referred to as harassment.
But hostile work environment is a specific
kind of harassment that triggers those
protections we talked about from Title VII
or the state-specific statute
that outlaws discrimination in your state.
Remember back to the language
from Title VII, discriminating in terms or
conditions of employment because
of a protected characteristic.
So, if a manager harasses an employee
and the harassment is so severe or
pervasive that it alters the employee's
ability to do their job, and the manager's
conduct is based on or because
of the employee's protected
characteristic, then that's discrimination
because it impacts the employee's terms or
conditions of employment,
their ability to do their job,
and it's based on the employee's
protected characteristics.
And that form of discrimination is
called a hostile work environment.
For more information on hostile work
environment, I made an in-depth video
that you can view by clicking on the link.
I'll put it up here.
In that video, I explain the criteria
that a worker must prove in order
to establish a claim
of hostile work environment.
An example of hostile work environment
discrimination would be a manager making
misogynistic jokes every day for a period
of time to a female worker, making
her feel uncomfortable or even unsafe.
Okay, so now you know the three kinds
of illegal employment discrimination.
The law refers to these theories
of discrimination as disparate treatment,
disparate impact,
and hostile work environment.
But discrimination is
a complex area of law.
To learn more about discrimination,
check out my guide.
I have a link to it
below in the description.
If you think you were the victim
of illegal employment discrimination,
talk to a lawyer in your jurisdiction.
If you're in Washington State,
you can feel free to reach out to my firm.
The more we hold employers accountable
for their wrongdoing, the more we
prevent them from harming other workers.
Okay, that's all for me this week.
See you next time.