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Discrimination #14
by Ross Runkel at LawMemo
"Discrimination" is usually considered a nasty word. But what does it really mean? And when is it illegal?
"Discrimination" used all by itself simply means to treat one thing differently from another. If I buy an orange instead of an apple, I've discriminated against the apple.
The key to figuring out what discrimination is legal and what is illegal is to ask the question "Why?" Because of what? What was the employer's motive?
In employment cases, it can be as simple as filling in the blanks in sentences that go like this:
- The employer refused to hire Jane because __________.
- The employer discharged Jane because __________.
- The employer refused to promote Jane because __________.
- The employer re-assigned Jane because __________.
- The employer did not give Jane a bonus because __________.
- The employer harassed Jane because __________.
The employer's action can be illegal if the "because" is race, color, sex, religion, disability, age, or some other reason that the law makes illegal.
But if the "because" is that Jane performed poorly or is habitually late, then the action will be legal.
Motive is everything. The difficulty is that a court or jury has to decide what the employer's motive was. That can be tricky business.
So I'll be spending several days discussing methods employees use to prove the wrong motive, and methods used by employers to show they had a proper motive.
Coming next: Disparate treatment #15: Employment Law 101
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