What is Employment Discrimination?

When I speak to potential clients, perhaps no term is thrown around more often then "discrimination." Sometimes, a potential client uses it correctly. More often, however, I find that people who come to me don't have a good understanding of what the law regards as discrimination. That is, many people don't know what makes discrimination illegal.

Of course, in the legal realm, the most common answer to a question like this is it depends, and this question is no different. So I'll get to the exceptions and qualifications in a bit. But in general, we can say that illegal employment discrimination occurs when an employer decides not to hire or promote an employee, or makes a material change in the terms and conditions of the employee's employment, and the employer makes that decision because of some characteristic of the employee that the law protects. Let's unpack this a bit.

Employment discrimination is when an employer either

  1. fires, fails to hire, or doesn't promote an employee, or
  2. makes a material change in the terms and conditions of the employee's employment, because of the employee's protected characteristics.

The first thing to say here is the illegal employment discrimination is not the same thing as discrimination. Discrimination is what you and I and everyone else do when we choose one or more options from some pool of options larger than our our ultimate choice. For example, when you go to the grocery store and select the pack of eggs without any cracked or broken shells, you've smartly applied a discriminatory criteria to make your selection.

Employers legally discriminate amongst employees all the time. For example, the sales rep with the best closing record might get the big new lead, the most experienced developer might get that one promotion spot, or the technician with the most availability might get a larger pool of hours. This sort of discrimination is entirely legal, and it's good for business.

But when an employer discriminates amongst employees because of their protected criteria, such as those protected by Title VII of the Civil Rights Act of 1964 (sex, race, color, national origin, and religion), the Age Discrimination in Employment Act (age when the employee is over 40), or the Americans with Disabilities Act (disability), then there's a good chance that it's engaging in illegal employment discrimination.

I say "good chance" because, with the law, nothing's ever simple. There are always exceptions. For example, if the employer is discriminating between employees because of some protected characteristic, but not in a way that affects the terms and conditions of employment, then there's likely no illegal discrimination. This might be hard to imagine, but let's use a contrived, extreme example to illustrate the point.

What if a construction company is keeping two sets of employment records? In one filing cabinet, it stores all of the employment records of its female employees and in another it stores all of the employment records of its male employees. This is discrimination on the basis of sex (which is protected), and t's also weird. Why would they do that? But, without more fishy behavior, it might not be illegal. If everything else between the employees is equal, then the employer's behavior may not violate any anti-discrimination laws.

Another reason to be careful when looking for illegal discrimination are the limits on coverage of various anti-discrimination laws. For example, employees in Virginia are protected from gender-based discrimination by a federal statute, Title VII of the Civil Rights Act of 1964 and by a state statute, the Virginia Human Rights Act. But Title VII's protections fall away for employers with fewer than 15 employees and the Virginia Human Rights Act's protections disappear when the employer has 4 or fewer employees. In your Virginia county or city, there may be a human rights ordinance that provides some protection for employers smaller than that, but even it may not do the trick. Sadly, many Virginia employees of small employers are without protection from things like religious or gender-based discrimination.

So how do you know if the discrimination you've faced is illegal employment discrimination? That's easy. Talk to a Virginia employment law attorney, like me. I will help you parse the case law, legal definitions, and regulations to determine if what you've suffered was a violation of your rights. Even better, if you have suffered illegal employment discrimination, there's a good chance I can help you fix it.

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