Overview of Unlawful Employment Discrimination

posted by Neil Klingshirn  |  Jul 17, 2009 1:49 PM [EST]  |  applies to Ohio

Unlawful employment discrimination means adverse treatment of employees motivated by the employees' age, sex, race, creed, religion, national origin, disability, veterans status or other protected class status.  A protected class is one identified by law as deserving protection from employment or other forms of discrimination.

Since motivation is invisible, discrimination is difficult, but not impossible, to prove. Pretext, or proof that an employer tried to cover up discrimination by providing a false reason for the adverse treatment, is one of the most effective ways to prove discrimination.

Courts generally remedy the damage done to victims of discrimination with make whole relief, which attempts to put the victim in the place he or she would have been absent the discrimination.  Make whole relief includes back pay, reinstatement and, in some cases, money damages for emotional pain and suffering and attorneys' fees. 

Employers Covered by Anti-Discrimination Laws

The anti-discrimination laws do not apply to all employers. For example, most federal discrimination laws only cover employers of 15 or more, while the federal age discrimination law covers employers of 20 or more. States that enact their own anti-discrimination laws often cover smaller employers. 

Employees Protected from Discrimination

Every employee has the right to be free from discrimination. White males have the right to be free from discrimination or harassment based on their race and gender, even if they have not been the historical targets of invidious employment discrimination. 

Employees also all have the right to be free from discrimination based on a protected class status. If unwelcome sexual hostility directed towards men interferes with a male's ability to perform his job, he has a right to file suit to prevent it and to recover the damage that it caused him.

Defining Protected Classes

Governments have passed discrimination laws in response to known, existing biases that prevented a specific class of people from achieving equal employment opportunities. Historically, classes subject to invidious discrimination have been defined along racial, gender, disability, religious and age lines. Discrimination based on race, gender, disability, religion, creed and age is therefore unlawful.

Until other classes of people are protected, biases that operate to deny them equal opportunities are not unlawful.  For example, an employer could refuse to hire an applicant who was born under the sign of Aquarius without breaking the law. Since astrological sign discrimination is not so prevalent as to require governmental intervention in private employment, governments have not passed laws to protect Aquarians.

Proving Unlawful Employment Discrimination.

Employment discrimination comes in two forms, "disparate" (i.e., differing) treatment and disparate impact. Disparate impact describes differing treatment resulting from an otherwise neutral employment condition, like a skills or agility test.  This article does not directly address disparate impact discrimination.

The type of discrimination discussed here, disparate treatment, requires proof that the employee's protected class was a motivating factor for the adverse employment decision. In other words, in an age discrimination case, the employee must prove that his or her age was a motivating factor in the employer's adverse decision.

Most discriminators do not admit discrimination and many actively deny.  Some may even believe that an unlawful bias did not motivate them even though that was in fact the case. Thus, employment discrimination is exceptionally hard, but not impossible, to prove. Successful proof of employment discrimination requires some or all of the following evidence:

  1. Direct, or "smoking gun" evidence, such as:
    1. disparaging remarks;
    2. slurs;
    3. admissions of bias (“women don't belong in law enforcement/should not be on construction sites/are bad at math”);
    4. disparaging or demeaning jokes or treatment.
  2. Indirect evidence, such as:
    1. statistics (an all white, male executive team or a higher than expected proportion of older workers laid off);
    2. Other cases of similar discrimination; and
  3. Pretext, which is a false reasons given by the employer to cover up the unlawful reason.

Proving Pretext

Since motivation is invisible, the U.S. Supreme court adopted a procedure for proving unlawful discrimination. It starts with what lawyers call a “prima facie” case.  A prima facie case requires proof that:
  1. The employee is a member of a "protected class";
  2. The employee is qualified for the job;
  3. The employee was terminated, demoted or otherwise treated worse than someone outside of the protected class; and
  4. The employee was damaged by that discrimination (i.e., lost wages or suffered a compensable injury)
If a discrimination victim proves a prima facie case of discrimination, he or she will win, unless the employer states a legitimate, non-discriminatory reason for its decision. 

Note that the employer only needs to state a non-discriminatory reason. The employer does not have to prove it had a non-discriminatory reason or otherwise shoulder the burden of proving it did not discriminate. However, once the employer states a non-discriminatory reason, the victim can attack the stated reason as pretextual.  A reason is pretextual if it is not the real reason or not a sufficient reason to motivate the adverse employment decision.  In that event, a judge or jury may infer from the employer's false reason that the employer tried to cover up an unlawful reason.

Discrimination Damages

The damages, or money recoverable to remedy proven discrimination, depends on the type of discrimination and whether state or federal anti-discrimination laws apply.  Federal discrimination laws allow victims of most types of discrimination to recover their lost wages and benefits. Some federal and state laws permit recovery of damages for emotional pain and suffering.

Each anti-discrimination law specifies or limits the amount and types of recoverable damages.  In general, federal law caps damages at certain levels, depending on the size of the employer.  Conversely, in some types of cases the court may or must double the employee's lost wages where, for example, the employee proves that the employer acted willfully. 


Most discrimination remedies are guided by the goal of "make whole relief." Make whole relief describes placing the discrimination victim in the same place he or she would have been had the discrimination not occurred. Back pay is a component of make whole relief, since compensates the discrimination victim for lost earnings.

Reinstatement is the other significant component of make whole relief. It remedies the harm done to the discrimination victims going forward by literally placing them placing in the position from which they were removed.

In some cases an employer may prove that reinstatement is not feasible. In that event, a court should order the employer to pay front pay. Front pay includes the wages and benefits that an employee would have earned if reinstated, minus what the employee is able to earn in other employment, up to a point in time at which the court concludes the victim will be able to remedy the effects of the discrimination through other employment.

posted by Neil Klingshirn  |  Jul 17, 2009 1:49 PM [EST]  |  applies to Ohio

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Neil Klingshirn

Neil Klingshirn
AV rated Super Lawyer and Employment Law Specialist
Independence, OH
Phone: 216-382-2500