The Civil Rights Act of 1964 prohibits discrimination in employment based on race, color, national origin, religion and sex. The Age Discrimination in Employment Act (1967) extended the prohibition against discrimination to age. In the years since, many states and the federal government barred discrimination based disability, pregnancy, citizenship, genetic information and status as a veteran. The characteristic protected by anti-discrimination law, like sex, age, race and veterans' status, are known as “protected classifications.” People who share those characteristics are in a “protected class.”

Two Types of Discrimination - Disparate Impact and Disparate Treatment

Laws prohibit discriminatory "treatment," where an employer treats employees in a protected class worse those who are not, and discriminatory "impact," where an employer does not intend to discriminate, but uses an otherwise neutral decision-making process that has a discriminatory effect. Examples include a height requirement or skills test that disproportionately screens out members of a protected class, like females, asians or hispanics. Griggs v. Duke Power Co., 401 U.S. 424 (1971). 

Disparate impact discrimination cases are comparatively rare.  Cases involving discriminatory treatment are far more common. Most of MEL's discussion of discrimination involves discriminatory treatment. 

Unlawful Discrimination - the Exception to the Rule

Surprisingly, most forms of employment discrimination are completely lawful. Employers can lawfully prefer a younger applicant with a degree from a prestigious university over an older one from a local state college, if education is what matters. In that case, the employer has a discriminatory motive in favor of a better education, but the motive is rational and legitimate. Even if irrational, employment decisions are not unlawful unless they are motivated by an employee's protected class. An employer could, for example, refuse to hire a 50 year old female Asian born under the sign of Aquarius, because she is an Aquarian. Although irrational, no law prohibits discriminaton based on astrological sign. As long as the employer's decision was not motivated by the employee's age, gender or race, it was lawful. 

Proving Unlawful Motivation

Proving unlawful motivation is not easy. Motive is invisible. We cannot touch or feel what someone thinks. Plus, most discriminators either fail to recognize their discriminatory motive, or are clever enough to conceal it. Consequently, "there will seldom be 'eyewitness' testimony as to the employer's mental processes." United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, (1983). But when there is it is known as "direct evidence" of discrimination.

Direct Evidence of Discrimination

Direct evidence of discrimination is "that evidence which, if believed, requires the conclusion that unlawful discrimination" motivated the employer's actions. Jacklyn v. Schering-Plough Healthcare Prods. Sales Corp., 176 F.3d 921, 926 (6th Cir. 1999).  Decision-maker statements that qualify as direct evidence include:

  • disparaging remarks about people in the protected class in general ("you can't teach an old salesman how to market with social media")
  • disparaging remarks that relate an individual's protected characteristic, especially as it relates to work ("Tiffany misses too much work because of her son is disabled")
  • remarks reflecting stereotypical views of people in a protected class ("Gretta is so bipolar. I never know what she will do next.")
  • slurs and demeaning jokes based on the protected characterisic ("I would ask you how old you are but I know you forgot how to count that high”)

Circumstantial Evidence

More commonly, a discrimination claimant has only circumstantial evidence that implies unlawful bias. Kline v. Tenn. Valley Auth., 128 F.3d 337, 348 (6th Cir. 1997) (setting forth the manner in which a plaintiff may prove unlawful discrimination under the ADEA). Circumstantial evidence is proof that does not on its face establish discriminatory animus, but lets a fact finder draw a reasonable inference that discrimination occurred. Kline, 128 F.3d at 348. Circumstantial evidence of bias can include:

  • treatment so unusual, egregious, unjust, or severe as to suggest discrimination,
  • an employer’s history of showing bias toward younger employees,
  • statistically significant differences in the numbers of females and males hired or fired,
  • adverse treatment of workers in the protected classification, but not workers outside of it, and vice versa
  • charges or complaints of similar discriminatory treatment by other members of the protected class, 
  • violation of company policy with regard to protected workers, without justification, and
  • false reasons for adverse treatment given by the employer as a cover up of the real reason.

A common thread running through circumstantial evidence is the treatment of "comparators," or comparably situated other employees outside of the protected class. If an employer treats comparators the same as employees within the protected class, the employer has proof that it did not discriminate against the protected class, and vice versa. Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 521-22 (6th Cir. 2008). 

Pretext Evidence of Discrimination

In cases in which employees lack direct, statistical or even comparator evidence of discrimination, an unexplainable or false reason for an adverse employment action can tilt the burden of proof in the victim's favor. This happens as a result of the "burden shifting" process that the U.S. Supreme Court adopted to compensate for the fact that direct evidence of intentional discrimination is hard to come by. The burden shifting process forces the employer to explain its reasons for the adverse action, and allows the employee to attack the employer's stated reason as pretextual. If the employee proves that the employer stated a false reason as a cover up of the real reason, the jury can infer that the real reason is unlawful discrimination.

Proving that the employer's stated reasons are false permits an inference of unlawful discrimination because employers know better than anyone else the real reason for their actions. If employers lie and give a false reason, the jury can conclude that the reason the employer lied was to cover up an unlawful reason.

Damages in Discrimination Cases

An employee who proves unlawful discriminat is entitled to be placed in the position he or she would have been absent the discrimination. This can include lost wages, past and future, lost benefits, compensation for emotional pain and suffering and, in some cases, an award of attorneys' fees.

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