The field of employment discrimination is perhaps the most legally complex and yet most rapidly growing branch of employment law. For human resources (HR) professionals and department managers, the enduring risk of a discrimination claim presents thorny organizational issues and daily constraints on communications. Virtually every stage of the employment relationship – recruiting, interviewing, testing, hiring, assigning, promoting, compensating, evaluating and terminating – is guided by anti-discrimination laws, policies and procedures.
In fact, employment discrimination has been declared contrary to U.S. policy in a variety of national and state legislative enactments and judicial rulings. Discrimination is, therefore, forbidden whether the employer intended to discriminate or did so accidentally or inadvertently. The law prohibits both de jure discrimination (open discrimination in violation of published laws) and de facto discrimination (unintended, covert, subtle, or inadvertent actions that produce unequal results). Civil rights laws prohibit both disparate treatment of protected classes of employees as well as procedures, policies, and actions that have a disparate impact on such employees.
Exactly what constitutes discrimination is itself an evolving idea. What was once limited to laws governing race, sex, religion, and age discrimination is now expanding to embrace genetic discrimination, overweight discrimination, and gender identity discrimination. Indeed, the full list of discrimination categories continue to grow:
- Race discrimination
- Color discrimination
- Religious discrimination
- Sex discrimination
- Sex discrimination based on sexual harassment
- Sexual orientation discrimination
- Sexual preference discrimination
- Gender identity discrimination
- Age discrimination
- Ethnic discrimination
- National origin discrimination
- Alienage/citizenship discrimination
- Size and weight discrimination
- Genetic information discrimination
- Disability discrimination
- Marital status discrimination
- Parental status discrimination
- Military or veteran status discrimination
- Political orientation discrimination
Even beyond these broad categories of discrimination, there exist more subtle and more specific acts that may be considered discriminatory. For example, selecting candidates to interview based on their zip codes or area codes may be considered clever but unlawful forms of race and ethnic discrimination. Similarly, choosing employees based on their English-speaking skills, their accents, or dialects may constitute race, ethnic or national origin discrimination, except in the few limited circumstances in which perfect English-speaking skills are necessary to perform the job. Employment decisions based on the perceived social or economic class of the employee are also inherently susceptible to attack: class differences often fall along racial, ethnic or national lines.
Yet some forms or discrimination may be permissible. It may be perfectly acceptable for an employer to reject a job applicant based on criminal status as a prior offender, or to discharge an employee found guilty of a crime. The employer can refuse a job to a candidate who does not meet the educational or experiential requirement of the job, or who hasn’t obtained the necessary licenses or certifications required by law, by professional standards, or by the job description. The law does not outlaw criminal status discrimination or educational discrimination, and indeed, such forms of discrimination may be necessary to maintain safe and skilled staff. Under the at-will employment doctrine, employers are free to hire or fire employees at will, for any reason or for no reason at all, provided that there is no employment contract with the employee and no collective bargaining agreement with a labor union.
Some forms of discrimination may or may not be unlawful for example, an employer may ban smoking in a smoke-free workplace, but can it refuse smokers? Can it ask job applicants if they smoke and reject them simply because they smoke at home on their own time? This issue continues to evolve, with about half the states presently protecting employees against discrimination based on their off-the-job smoking, drinking or other personal conduct. Similarly, the law continues to develop in regard to job applicants and workers with unorthodox clothing, hair styles and body art. Can an employer refuse to hire an employee with visible tattoos and piercings. What was once associated with marginalized groups such as ex-convicts, punk rockers, and gang members is now a mainstream practice. But does an upscale restaurant owner have a right to reject waiters who pierce their noses? May an employer require that no tattoos be displayed by employees who interact with the public in a corporate customer service division? These are unsettled questions.
Still other forms of discrimination are permissible only in certain circumstances. For example, an employer may be permitted to discriminate against an overweight employee or job applicant who is short in stature unless the employee’s weight or height is the product of a recognizable disability, or unless a state statute prohibits size and weight discrimination. But overweight litigants have been largely unsuccessful in suing their employers for weight discrimination under the Americans with Disabilities Act (ADA) and similar laws. Where an applicant’s weight or height may be critical to performing the essential functions of the job, such as a police officer or horse jockey, an employer may be justified in discriminating specifically on the basis of these factors.