Discrimination Law 101 Knowing the basics can help employers avoid discrimination-related problems.
By Anthony B. Byergo
Small businesses seldom have full-time human resource or legal professionals to ensure compliance with the various laws prohibiting discrimination in the workplace. The failure to comply, and the defense of lawsuits brought by terminated employees, can have incredibly high costs that might even threaten the existence of a small business. Every small business owner and manager should have at least a working knowledge of the legal requirements and restrictions of discrimination laws.
Small business owners and managers often assume that their employees are employed at-will; that they can be fired for good reason, bad reason or no reason at all. However, anti-discrimination laws place a significant restriction on the right to fire or take other adverse action against any employee for “bad” reasons, namely because of any “protected” class or status, including race, color, sex, religion, national origin, age or disability.
Disparate Treatment The most common type of discrimination claim is the “disparate treatment” claim. This type of claim alleges that an employer took adverse action (e.g., termination) because of the employee’s protected class (e.g., race). One way to prove this type of claim is by direct evidence of discrimination, such as statements showing prejudicial views toward the individual.
A second way to prove such claims is by indirect evidence, which raises an inference of discrimination, such as more favorable treatment of similarly situated persons not in the protected class. For example, a black employee who is terminated for misconduct might point to a white employee who engaged in similar misconduct but was not fired.
In such cases, the burden shifts to the employer to articulate a legitimate reason for the differential treatment. Then, the burden shifts back to the employee to show that the reason is false and simply a pretext for discriminatory treatment. Disparate Impact Another theory of discrimination challenges employment practices or policies that appear neutral on the grounds that they have a disparate impact on some protected class. Once a disparate impact is shown, the employer must establish that the challenged policy is job-related for the position in question and consistent with business necessity.
For example, an employer might have a policy of not hiring applicants who don’t have a high school diploma (a policy which might be shown to have a disparate impact on some racial minorities). The employer must then demonstrate that a high school diploma is, in fact, job-related and a business necessity—a requirement that can be difficult for unskilled labor and some other jobs.
Failure to Accommodate Disability and religious discrimination laws require an employer to “accommodate” employees in those protected classes. By far the most prevalent duty is to provide “reasonable accommodations” to employees with disabilities. Such accommodations are intended to permit individuals with disabilities to perform the essential functions of the job in question without undue hardship on the employer. Accommodations include, but are not limited to, making facilities accessible, job restructuring of non-essential functions and acquiring or modifying equipment.
In the religious accommodation context, accommodations typically are only necessary to permit employees time to exercise their religion, provided there is minimal expense and it does not infringe on the rights of other employees. Typical accommodations include permitting voluntary shift trades, flexible scheduling or modified break schedules. Sexual Harassment The courts traditionally have recognized two types of actionable sexual harassment: “quid pro quo” and “hostile work environment.” Quid pro quo harassment is where a manager or supervisor promises benefits in exchange for sexual favors, or threatens or takes adverse action against those who do not submit to sexual advances.
More common are cases of alleged hostile work environment harassment, where verbal or physical conduct of a sexual nature, or which is otherwise demeaning or discriminatory toward one gender, has the effect of unreasonably interfering with work performance or creating an intimidating, hostile or offensive work environment.
Employers automatically are liable for sexual harassment by supervisors and management if the harassment results in any tangible employment action (e.g., firing, failure to promote, loss of pay or benefits). However, an established policy prohibiting sexual harassment and a complaint procedure can be a defense for the employer when the harassment doesn’t result in tangible employment action. Failure to have such a policy and complaint procedure, or failure to enforce the policy, will make an employer automatically liable for harassing conduct. Retaliation The anti-discrimination laws also prohibit retaliation against employees who engage in protected activity in opposition to discrimination, such as filing a charge with federal or state agencies, making internal complaints of discrimination or harassment, or participating in an investigation of alleged discrimination or harassment.
Keep in mind that discrimination and harassment cases typically turn upon such difficult to prove (and disprove) notions as intent and context, and they frequently can depend on the credibility of witnesses as to what a manager or supervisor said or did not say.
Maintaining a workplace free of discrimination and harassing behavior is not only the “right” thing to do; it is also the “smart” thing and the “economic” thing to do. The costs of defending cases quickly can run into tens of thousands of dollars; and the cost of losing such cases and paying a judgment easily can run into hundreds of thousands of dollars. Anthony Byergo is an attorney with Armstrong Teasdale LLP. He can be reached at .
