Defining Employment Discrimination

September 15, 2012 in , , , ,

Employment discrimination can be a scary subject for business owners, managers, and supervisors. It can conjure up a long list of potentially severe ramifications for the business.

Much of the fear, from a supervisory point of view, can be traced to a misunderstanding of exactly what constitutes employment discrimination. Learning the definition of employment discrimination may help you prevent its occurrence in your workplace. And, in the event it does occur, familiarity with the terms and language can prepare you to take the necessary steps to resolve the situation.


The legal definition of “discrimination” differs depending on the specific law. Employment discrimination may be broadly defined as:

Employment decisions or working conditions that are highly advantageous or disadvantageous to a member of one group compared to members of another group in hiring, promotion, job assignment, termination, and compensation, including various types of harassment.

Some common employment decisions that anti-discrimination laws would apply to include:

  • personnel selection
  • admission to training programs
  • promotions
  • work assignments
  • transfers
  • compensation
  • layoffs
  • discipline
  • discharge

Working conditions as defined under the National Labor Relations Act can refer to a broad range of workplace issues.

Federal Inclusions and Protected Classes

Remember, several federal laws prohibit employment discrimination. Employment practices that are covered by federal anti-discrimination laws cover all phases of the employment lifecycle. Some practices covered by these federal laws include, but are not limited to:

  • hiring and promotion
    • recruitment and job advertisements
    • candidate selection o pre-employment testing
    • employee classification
  • discipline and termination
  • training
  • compensation
    • retirement plans
    • benefits
  • terms and conditions of employment
  • privileges (such as additional benefits or company perks, including working from home, flexible hours, personal use of company car)

Federal anti-discrimination laws prohibit discrimination in terms and conditions of employment against individuals in protected classes. The protected classes at the federal level include, but are not limited to:

  • race
  • color
  • religion
  • sex
  • age
  • national origin
  • veteran status
  • uniform servicemember status
  • genetic information
  • physical or mental disability

Employment Discrimination Terms Defined

In addition to the broad definition of employment discrimination, some common terms are frequently mentioned when describing the act of employment discrimination. Here are a few of the terms and exactly what they mean:

Disparate Treatment exists when an employee is treated less favorably than others based on the employee’s protected class. This type of discrimination is intentional discrimination and it requires proof of discriminatory motive.

Disparate Impact (also called adverse impact) is where a seemingly neutral employment policy or practice has the effect of disproportionately excluding members of a particular protected group. An employment policy or practice may be said to have an adverse impact when it excludes a disproportionate number of members of a protected class and where the policy or practice cannot be justified as a business reality.

The Equal Employment Opportunity Commission (EEOC) defines adverse impact as:

“Adverse impact may be found when a selection process for a particular job or group of jobs results in the selections of members of any racial, ethnic, or sex group at a lower rate than members of other groups. The enforcement agencies will generally regard a selection rate for any group which is less than four fifths or 80 percent of the rate for the group with the highest selection rate as constitution evidence of adverse impact.”

Systemic Discrimination as defined by the EEOC:

“Pattern of practice, policy and/or class cases where the alleged discrimination has a broad impact on an industry, profession, company, or geographic location.”

In simplest terms, systemic discrimination cases involve more than isolated, sporadic incidents. There is a pattern of repeated, system-wide discrimination.

This publication is designed to provide accurate and authoritative information with regard to the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought.


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