3 Types of Illegal Discrimination

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.