What Constitutes Discrimination?

equal opportunity words

Employment discrimination can come in many forms. In this post we will look at two ways discrimination may play out in the workplace: an adverse employment decision and harassment.

Title VII of the Civil Rights Act of 1964 and several other laws make it illegal to discriminate against someone on the basis of being a member of a protected class or associated with someone who is a member of a protected class. The Equal Employment Opportunity Commission (“EEOC”) has outlined the following list of protected classes under federal law:

– Age
– Disability
– Equal Pay/Compensation
– Genetic Information
– Harassment
– National Origin
– Pregnancy
– Race/Color
– Religion
– Retaliation
– Sex
– Sexual Harassment
– Veteran/Military Status

To have a claim that is protected under the law, the individual who believes he is the victim of discrimination must believe that he is being discriminated against because he is a member of a protected class (or he associates with someone who is a member of a protected class). Just because an individual happens to be a member of a protected class does not automatically give that person a claim. He has to be able to show a connection between the alleged discrimination and his status as protected under the law.

Adverse Employment Decision

An adverse employment decision is something that may give the employee cause to file a discrimination lawsuit or charge of discrimination. An adverse employment decision is action taken by the employer that negatively affects a term, condition, or privilege of employment. Such action may include failing to hire a job applicant, so an employee may be protected by the law even if she was not hired. Practically, a “failure to hire” claim can be difficult to prove, but the law attempts to protect job applicants from discrimination.

If an employer takes such an adverse action, the employee can file a Charge of Discrimination with the EEOC. The EEOC will investigate the charge and take one of several actions: seek a voluntary settlement or file a lawsuit if illegal action is found, recommend mediation, or give the employee the right to sue the employer in court.

You may recall the Abercrombie & Fitch case that was decided by the U.S. Supreme Court. In that case, the court held that Abercrombie & Fitch illegally discriminated against an applicant when they failed to hire her because she wore religious headwear. You can read about that case here. This is one example of where a job applicant experienced an adverse employment decision based on the company’s decision to not hire her.


Another type of discrimination is harassment. The EEOC defines harassment as any unwelcome conduct that is based on one of the protected classes above. More specifically, the EEOC states that “harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.” Petty slights, annoyances, and isolated incidents will typically not constitute discrimination unless they are extremely serious.

Examples of discriminatory harassment include offensive jokes, slurs, epithets, and physical assaults or threats. And just like with adverse action claims above, an employee that feels he or she has been harassed can file a Charge of Discrimination with the EEOC. Before doing so, employees should make sure they have reported the offensive conduct to a supervisor, boss, or human resources manager. Oftentimes, employers will have a complaint process outlined in its company handbook, so be sure to check that and follow those procedures.

Closing Thought

Workplace discrimination is something that both employers and employees should take seriously. If you are an employee with fears you’ve been discriminated against, or an employer facing an employment discrimination claim, you should speak to an attorney about your situation.

Krigel & Krigel maintains a great Employment Law Group in Kansas City and you can contact them anytime with questions you may have.

Image: Adobe/Tupungato
*This article is very general in nature and does not constitute legal advice. Readers with legal questions should consult with an attorney prior to making any legal decisions.

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