"Mad Men." "Hidden Figures." "Remember the Titans." "Green Book." Pop culture is full of examples of discrimination from forty and fifty years ago or more. These examples of discrimination are not only easily identifiable, but also easy to dismiss as something that doesn’t happen anymore, at least not in the workplace. However, the reality is that discrimination occurs every day in workplaces all over the world.
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964, prohibits employers from discriminating against employees and applicants for employment on the bases of race, color, religion, national origin, and sex. Title VII is designed to ensure that employment decisions are made based on objective, job-related criteria.
Title VII applies to employers with fifteen or more employees and requires that all employees or applicants for employment be treated equally with respect to the bases protected by the statute. Practically speaking, this means that promotions, transfers, assignments, and other job-related benefits and conditions of employment should be based on merit. When interviewing a candidate for employment, hiring managers should not consider a “foreign-sounding” last name, or whether a female employee might be recently married or thinking about having children.
An employee can prove discrimination under Title VII in multiple ways, the most common being disparate treatment discrimination and harassment. In employment discrimination cases, a burden—shifting framework applies, requiring both the employee and employer to prove elements of the claim. First, the employee claiming discrimination must make a prima facie claim of discrimination. If the employee is able to prove each element of a discrimination claim, the burden of proof shifts to the employer to, essentially, justify the challenged action. If the employer is able to provide a legitimate, non-discriminatory reason for its actions, the employee is then given another chance to demonstrate that the employer’s stated reason is merely a pretext for discrimination.
A. Disparate Treatment Discrimination
The most common type of discrimination is disparate treatment discrimination. When an employee alleges discrimination under a disparate treatment theory, the employee is essentially claiming that some other employee, who is of a different, race, color, gender, religion, or national origin, is being treated more favorably than they are and that the employee’s membership in a protected class is the reason.
In order to prove disparate treatment discrimination, an employee needs to make a prima facie claim of discrimination. To do this, an employee must show:
1. The employee is a member of a protected class;
This is always the easiest element to prove. While it does happen, it is extremely rare for an employer to challenge an employee’s membership in the protected class the employee claims.
2. The discriminator knew of the employee’s protected class;
It is not enough for an employee to be a member of a protected class. The employer, or alleged discriminator, must be aware of the membership in that class, and that membership is not always obvious.
For example, if a Black, female employee of the Catholic faith and Nigerian descent alleges religious and national origin discrimination, she must prove that her employee knew of her religion and specific national origin. While her employer may be able to clearly see that she is Black, or Female, Catholic or Nigerian may not be readily observable.
3. Acts of harm occurred;
Here, an employee will need to prove that some act of harm occurred. Was the employee suspended, reprimanded, fired, denied a promotion, denied a bonus, given a lower than deserved performance rating, or otherwise subjected to harm?
While there are many ways in which an employee can be subjected to harm, it is important to ensure that the harmful act truly is a harmful act. A supervisor is allowed to supervise. Performance is, at least in some respects, subjective. A manager can be bad at their job and personalities will not always mesh. Employment discrimination laws are not intended to address every-day workplace unpleasantness, but rather true discrimination.
4. Others who were similarly situated were either treated more favorably or not subjected to the same or similar adverse treatment.
In the context of employment discrimination, similarly situated has a specific meaning. A similarly situated employee is one whose employment situation is nearly identical to the employee alleging discrimination, generally occupying the same position or job title, in the same supervisory chain.
Once an employee makes a prima facie claim of discrimination, the employer is afforded the opportunity to provide a legitimate, non-discriminatory reason for its actions. If the employer is able to make this showing, the burden of proof shifts back to the employee to demonstrate that the employer’s reason is merely a pre-text for discrimination.
B. Discriminatory Harassment
The other way to prove discrimination is to show that an employee has been subjected to discriminatory harassment. With a harassment claim, an employee must demonstrate:
1. The employee is a member of a protected class;
Like with Disparate Treatment, this is usually the easiest element to prove. While it does happen, employers rarely contest an employee’s membership in the protected class the employee claims.
2. The harasser was aware of the employee’s membership in that protected class;
Like with Disparate Treatment, this may or may not be easy to prove.
3. The employee was subjected to acts of harassment;
With a harassment claim the employee must demonstrate that they were subjected to harassment which had a detrimental affect on their ability to perform the duties of their job, or which negatively impacted the terms and conditions of the employee’s employment. An employee may use a pervasive pattern of harassment to prove that they are being harassed, or a single, extremely severe incident of to prove harassment.
For example, if an employee’s boss makes small, racially based comments every week or so for months, an employee could rely on that pattern of actions to make a claim of harassment. On the other hand, if an employee’s supervisor came to work and announced that all employees would be attending a Ku Klux Klan meeting at lunch, that single incident of harassment would likely be sufficient to pursue a claim, even if nothing else had ever happened.
4. The harassment was based on the employee’s membership in the protected class
Finally, the employee must prove that the harassment is based on their protected class. If an employee’s supervisor comes to work every day and tells the employee that the shirt they are wearing is ugly, that might certainly wear the employee down over time and impact their ability to do their job, but it seems unlikely that those statements would be based on a protected class. However, if instead of “I don’t like your shirt” comments were made about a woman’s figure, or an employee’s accent, the connection to a protected class would be clear.
This overview is just the beginning. If you think you are being subjected to discrimination, begin documenting everything. You will need evidence to support you should you pursue a discrimination claim. You do not have to allow discrimination to continue but do weigh your options for addressing discrimination. While it is difficult to understand how discrimination is still an issue in 2019, discrimination is difficult to prove, and difficult to fight.
You can find more resources through the Young Lawyers Division Women in the Profession Committee and Labor and Employment Committee.