What is Discrimination at workplace?

The 1964 Civil Rights Act prohibits discrimination in employment based on race, color, or national origin. The Age Discrimination in Employment Act (1967), extended the prohibition on discrimination to include age. Many states and the federal government have since stopped discriminating based on age, gender, citizenship, genetic information, and veteran status. Protected classifications are a group of people who have certain characteristics that are protected under anti-discrimination laws. These include sex, age, and race as well as veterans' status.

Two types of discrimination - Disparate impact and disparate treatment

Discriminatory treatment is when an employer treats employees from a protected group worse than others. The discriminatory impact is where an employer uses a neutral decision-making process with a discriminatory effect but does not intend to discriminate. A height requirement or a skills test that discriminates against members of protected classes, such as Hispanics, Asians, or females, is one example. Griggs v. Duke Power Co., 401 U.S. 424 (1971).

Discrimination cases involving disparate are rare. More cases involve discriminatory treatment. MEL discusses discrimination mainly in terms of discriminatory treatment.

Unlawful Discrimination- The Exception to Rule

Most forms of employment discrimination, surprisingly, are legal. If education is important, employers can legally prefer a younger applicant who has a degree from a prestigious university to one who is less qualified. The employer may have a discriminatory motive for preferring a higher education candidate, but the motive is legitimate and rational. Employment decisions, even if they seem illogical, aren't illegal unless they are motivated in part by the protected class of an employee. For example, an employer might refuse to hire a 50-year-old female Asian who was born under the Aquarius sign. Even though it may seem absurd, discrimination based upon astrological signs is not prohibited by law. It was legal as long as the decision of the employer was not motivated by the employee’s race, age, gender, or gender.

Proving Illegal Motivation

It is difficult to prove unlawful motivation. Motive is invisible. It is impossible to feel or touch what someone thinks. Plus, most discriminators are either unable to see their discriminatory motives or clever enough to hide them. Therefore, there will rarely be any 'eyewitness testimony' as to the employer’s mental processes. United States Postal Service Bd. Bd. It is called "direct evidence" of discrimination when it is present.

Direct Evidence Of Discrimination

Direct evidence of discrimination refers to "evidence that, if believed", would support the conclusion that the employer engaged in unlawful discrimination. Jacklyn v. Schering -Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cor. 1999). Direct evidence can be obtained from decision-makers who make the following statements:

• Defamatory remarks about the protected class generally ("You can't teach an elderly salesman how to market using social media")
• Discrediting remarks about a protected characteristic of an individual, especially when it comes to work ("Tiffany is too busy because her son is disabled")
• Remarks that reflect stereotypical views of people from a protected group ("Gretta is so bipolar. She will do something next that I don't know about.
• Slurs and demeaning jokes that are based on protected characteristics ("I would like to ask you how old, but I know you forgot how high you can count")

Circumstantial Evidence

A discrimination claimant may have only circumstantial evidence that suggests unlawful bias. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cor. 1997) (outlining the method by which a plaintiff can prove unlawful discrimination by the ADEA). Circumstantial evidence refers to proof that, while it does not establish discriminatory animus, allows a fact-finder to draw a reasonable inference of discrimination. Kline. 128 F.3d 348. You can use circumstantial evidence to support bias:

• Treatment so extreme, inexplicable, unjust, or severe that it suggests discrimination
• An employer's history of bias towards younger employees
• Statistics show statistically significant differences between males and females in terms of the number of men hired or fired.
• Neglective treatment of workers in the protected class, but not of those outside it and vice versa
• Accusations or complaints about similar discriminatory treatment of protected class members by others
• Without justification, violation of company policy regarding protected workers
• Employers may use false reasons for adverse treatment to cover up the true reason.

One common thread in circumstantial evidence is how "comparators" are treated. These are employees who are similarly situated to the protected class. Employers that treat comparators in the same way as protected class employees will have evidence of discrimination against protected class employees and vice versa. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 521-22 (6th Cor. 2008).

Pretext Evidence of Discrimination

An unjustified or false reason for a discriminatory employment action against an employee can shift the burden of proof in favor of the victim in cases where there is no direct, statistical, or comparator evidence. This is due to the U.S. Supreme Court's "burden-shifting", process to offset the difficulty of finding direct evidence of intentional discrimination. The burden-shifting process requires the employer to give reasons for the adverse action and allows the employee the right to attack the employer's stated reason. The jury can conclude that unlawful discrimination is being committed if the employer gives false reasons as a cover-up.

Employers know the true reason behind their actions better than anyone else, so proving that they are lying about the reasons is a way to prove unlawful discrimination. Employers who lie or give false reasons can be found guilty of unlawful discrimination by the jury.

In Discrimination Cases, Damages

Unlawful discrimination can be proven by an employee and the employee is entitled to be put in the same position as if the discrimination had not occurred. These can include lost wages, past or future, damages for emotional pain and suffering, and, in certain cases, attorneys' fees.

Discrimination in employment can take two forms: disparate (i.e. differing) treatment or disparate impact. Disparate Impact refers to the differing treatment that results from a neutral employment situation, such as a skill or agility test. Disparate impact discrimination is not addressed in this article. 

Disparate treatment is a form of discrimination that requires evidence that an employee's protected group was a motivating factor in the adverse employment decision. An example of age discrimination is where the employee must show that the employer made an adverse employment decision because of his or her age.

Bias motivates

Many discriminators don't admit to discrimination, and some actively deny it. Some people may believe they were not motivated by an illegal bias, even though it was. Employment discrimination can be extremely difficult, but not impossible to prove. You will need to prove employment discrimination using some or all the following evidence

1. Direct evidence (or "smoking gun") such as:
1. Discriminatory remarks
2. slurs;
3. Bias admissions ("women shouldn't be in law enforcement/shouldn't be on construction sites/are poor at math")
4. Discriminatory or demeaning treatment or jokes
2. Indirect evidence such as:
1. Statistics (an all-white male executive team and a higher than expected percentage of older workers laid off);
2. Other cases of discrimination similar to this;
3. Employer fails to adhere to its policies regarding people in the protected classes.
3. The pretext is a false excuse used by an employer to hide an illegal reason.

Proving Pretext

The U.S. Supreme Court adopted a process to prove unlawful discrimination because motivation is not visible. The process begins with what lawyers refer to as a "prima facie case". To prove prima facie, you must have:

1. The employee is part of a protected class.
2. The job is suitable for the employee.
3. The employee was fired, demoted, or treated worse than anyone in the protected class.
4. Discrimination caused injury to the employee (e.g., loss of wages or compensable injury).

If the discrimination victim can prove a prima facie case, he/she will prevail, unless the employer gives a valid, non-discriminatory explanation for its decision.

The employer does not need to give a discriminatory reason. The employer does not need to prove that it had a discriminatory reason. The victim can, however, attack the reason stated by the employer as pretextual if it states that the reason was not discriminatory. If the reason stated is not the true reason, or not sufficient to justify the adverse employment decision, it is pretextual. A judge or jury could infer from the false reason given by the employer that the employer attempted to hide an illegal reason.