The Perils of “Unintentional” Discrimination–Tip of the Week

Everyone knows that it’s unlawful to discriminate on the basis of race, color, sex or gender, religion and national origin because of Title VII of the Civil Rights Act of 1964.  Everyone also knows that age discrimination is prohibited by the Age Discrimination in Employment Act.  And everyone knows that disability discrimination is banned by the Americans with Disabilities Act.  Now let’s see if everyone knows the answers to the following questions.

Q: If you hire a male instead of a female because you have a preference for male employees, are you guilty of sex discrimination?

A: Yes.

Q: If you promote a white employee instead of an African-American employee because you are biased against African-Americans, are you guilty of race discrimination.

A: Yes.

Q: If you discipline a Hispanic employee for something you have allowed white employees to do with no punishment because you don’t like Hispanics, are you guilty of national origin discrimination?

A: Yes.

Q: If you fire a 60 year old employee and replace him or with a 25 year old employee because you want a young workforce, are you guilty of age discrimination?

A: Yes.

Q: But can you be guilty of “unintentional” discrimination as well as the intentional types of discrimination enumerated above?

A: Yes.

Q: How so?

A: Under what courts call the “disparate or adverse impact theory,” it’s possible for an employee to prove discrimination “by showing the existence of an employment practice which, although neutral on its face, has the effect of disproportionately affecting persons in a legally protected group.”

Q: How is this theory applied as a practical matter?

A: If you have a predominantly white workforce and primarily hire on the basis of recommendations you receive from current employees, your workforce will likely remain predominantly white.  This employment practice may make you guilty of “unintentional” race discrimination.

If your company’s minimum height and weight requirements effectively exclude most female applicants and you can’t demonstrate that these requirements are reasonably necessary for the jobs in question, the company may be subject to a sex discrimination claim because of the effect of these requirements, regardless of your intent. 

Similarly, pre-employment tests and education requirements sometimes result in employers being found guilty of race discrimination, because these tests and requirements have the effect of excluding a disproportionate number of minority applicants–and the employers are unable to demonstrate that the pre-employment tests are sufficiently related to the jobs for which they are given or that the education requirements are necessary for individuals who perform particular jobs.

Q: How can an employer prevent claims of “unintentional” discrimination?

A: (1) Advertise for new employees.  (2) Post notices about promotion opportunities.  (3) Make sure that all job requirements are job-related.  (4) Establish objective qualifications for specific jobs.  (5) If minorities are rarely ever hired or promoted, carefully review all employment practices to see what may be causing this “unintentional” effect.  (6) If women are never able to break through the “glass ceiling” of upper management, determine if there is some “unintentional”–yet perhaps unlawful–reason for this result.  (7) Consider whether pre-employment tests are effectively eliminating a disproportionate number of minority applicants.  (8) If it takes minorities or females twice as long to be promoted as white males, find out why.  (9) If the age of your workforce is quite young, despite a fair number of employment applications from employees 40 years old and above, ask what gives.  (10) Remember–you won’t necessarily win a discrimination case by telling a judge or jury, “I didn’t mean to do it.”