WEBVTT

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So, you probably know that employment

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discrimination is illegal.

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But do you know all the ways that illegal

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employment discrimination

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happens in the workplace?

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Well, you're in luck.

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I'm an employment lawyer,

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and in this video, I'm going to detail

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the different theories of discrimination.

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That is all the ways that illegal

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discrimination happens in the workplace.

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So, stick around.

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[MUSIC] Before I begin,

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nothing in this video is legal advice.

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If you think you were discriminated

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against at work, talk to an employment

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lawyer in your jurisdiction.

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If you're in Washington State,

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feel free to reach out to my firm.

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The link to my website is

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in the description below.

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Okay, let's get to it.

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So, before we talk about all the ways

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that employment discrimination arises

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in the workplace, let's talk a little bit

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about how the law defines discrimination.

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It will be important

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later in our discussion.

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To do that, we'll first look at the law.

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Our protections against discrimination

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arise originally in the

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Civil Rights Act of 1964.

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Most states have also enacted their own

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anti-discrimination statutes that

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supplement the Civil Rights Act of 1964.

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But all workplace discrimination is based

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on the same language originating

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in that Civil Rights Act of 1964.

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The specific part of the Civil Rights Act

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that we'll be looking

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at is called Title VII.

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And specifically, we'll be focusing

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on Section 703, Subsection A.

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That section reads,

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"It shall be an unlawful employment

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practice for an employer to discriminate

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against any individual with respect to his

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compensation, terms, or conditions, or

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privileges of employment, because of such

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individual's race, color,

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religion, sex, or national origin."

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So, to put it simply,

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Title VII's anti-discrimination provision

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outlaws discrimination in compensation,

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terms or conditions of employment,

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or privileges of an employment

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because of protected characteristics.

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But that discrimination can

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happen in any number of ways.

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So, let's talk about each way that that

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discrimination can arise in the workplace.

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So, there are three main theories

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of discrimination that, if they occur,

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they trigger the protections of Title VII

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or the protections of the state-specific

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statute that outlaws

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discrimination in your state.

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These three theories of discrimination are

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known as the following: first,

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disparate treatment; second,

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disparate impact; and third,

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hostile work environment.

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So, let's outline all three of them,

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and I'll provide some examples too.

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So first,

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we'll talk about disparate treatment.

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Now, disparate treatment is the most

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obvious form of discrimination.

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It's the type of discrimination you

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probably think of when you think

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of employment discrimination.

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It simply means that an employer took

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an adverse action against an employee

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because of that employee's

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protected characteristics.

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That adverse action can be discharge,

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demotion, change in benefits,

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change in compensation,

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failure to hire or failure to promote,

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or anything else that changes the worker's

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terms or conditions of employment.

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Remember back to our

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language from Title VII.

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It needs to change the compensation,

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terms, conditions,

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or privileges of employment because of

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the employee's protected characteristics.

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And disparate treatment can be a difficult

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form of discrimination to prove because it

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requires discriminatory intent

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on the part of the employer.

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The employer must have the intent

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to discriminate against the employee

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because of the employee's

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protected characteristics.

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Now, the employee's protected

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characteristics need not be the only

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motivation for the employer's decision,

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but it needs to be a motivating factor.

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In Washington law, we call

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that the substantial factor test.

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An example of disparate treatment

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discrimination would be a hiring manager

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refusing to hire a woman based on his

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concern that the woman will have to take

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time off later in her employment

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to take care of her child.

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He took an adverse action against

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the woman by failing to hire her.

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She was in a protected group because sex

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and gender is a protected characteristic,

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and he was motivated by her

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protected characteristic.

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The next theory of discrimination is known

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as disparate impact,

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and it occurs when an employer has

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a seemingly neutral policy

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that negatively and disproportionately

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impacts workers who are

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members of a protected group.

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Unlike disparate treatment,

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disparate impact does not

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require discriminatory motive.

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Instead, affected employees need only show

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the consequences of that neutral policy

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and how they fall more harshly

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on the protected group.

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For example,

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in a case here in Washington State called

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Kumar versus Gate Gourmet,

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the employer had a policy of not allowing

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workers to bring lunch to work, and

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instead providing the workers their lunch.

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The problem was that the employer failed

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to provide vegetarian options,

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and a group of these employees were

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members of a religious group

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who could not consume meat.

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So, the company's policy forced these

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employees to either consume meat in

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violation of their religion or go hungry.

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So, while the policy didn't explicitly

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discriminate against any group,

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it fell more harshly on this protected

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group because religion is

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a protected characteristic.

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The policy had a discriminatory impact

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on the terms or conditions of employment

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because being able to have lunch

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at work is a condition of employment.

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Now, the final theory of discrimination is

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called hostile work environment,

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but this form of discrimination is most

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commonly referred to as harassment.

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But hostile work environment is a specific

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kind of harassment that triggers those

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protections we talked about from Title VII

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or the state-specific statute

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that outlaws discrimination in your state.

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Remember back to the language

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from Title VII, discriminating in terms or

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conditions of employment because

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of a protected characteristic.

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So, if a manager harasses an employee

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and the harassment is so severe or

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pervasive that it alters the employee's

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ability to do their job, and the manager's

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conduct is based on or because

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of the employee's protected

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characteristic, then that's discrimination

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because it impacts the employee's terms or

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conditions of employment,

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their ability to do their job,

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and it's based on the employee's

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protected characteristics.

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And that form of discrimination is

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called a hostile work environment.

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For more information on hostile work

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environment, I made an in-depth video

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that you can view by clicking on the link.

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I'll put it up here.

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In that video, I explain the criteria

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that a worker must prove in order

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to establish a claim

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of hostile work environment.

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An example of hostile work environment

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discrimination would be a manager making

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misogynistic jokes every day for a period

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of time to a female worker, making

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her feel uncomfortable or even unsafe.

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Okay, so now you know the three kinds

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of illegal employment discrimination.

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The law refers to these theories

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of discrimination as disparate treatment,

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disparate impact,

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and hostile work environment.

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But discrimination is

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a complex area of law.

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To learn more about discrimination,

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check out my guide.

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I have a link to it

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below in the description.

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If you think you were the victim

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of illegal employment discrimination,

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talk to a lawyer in your jurisdiction.

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If you're in Washington State,

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you can feel free to reach out to my firm.

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The more we hold employers accountable

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for their wrongdoing, the more we

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prevent them from harming other workers.

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Okay, that's all for me this week.

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See you next time.