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What is Employment Discrimination

1. What is “employment discrimination”?

Employment discrimination is a specific area of employment law that is based upon fundamental rights granted or protections afforded under the US Constitution. Employment discrimination laws prohibit certain types of discrimination by employers against employees or prospective employees based upon their protected characteristics. Various federal and state laws prohibit employer discrimination based upon race, ethnicity, sex, religion, national origin, age, physical disability, and sexual orientation. These are known as “protected classes” of individuals. Discrimination generally includes demonstrating biases in actions or decision making in the context of hiring, firing, compensation, benefits, promotion, job details or scheduling, etc. These laws also prohibit retaliation against employees for reporting or bearing witness to any of these forms of discrimination. While the due process clauses of the 5th and 14th Amendments to the US Constitution prohibit these practices by the federal and state governments, numerous federal statutes prohibit this conduct by private employers based upon authority under the Commerce Clause. Lastly, states often pass laws that afford greater protections to employees than those afforded under federal law. This chapter focuses on the major federal statutes protecting employee rights.

•    Note: Discrimination may result from creating conditions that are oppressive and cause an employee to leave employment. This is known “constructive discharge”.

•    Example: Employer biases may include failing to hire someone because of her race. Less obvious examples include allowing or failing to prevent sexual harassment or the development of a hostile work environment as form of sex-based discrimination.

•    Discussion: How do you feel about state and federal government efforts to prevent employer discrimination? What do you think are the government objectives behind these laws? Can you think of any arguments against such regulation? Should these laws be balanced against an employer’s rights with regard to carrying on its business practices?

•    Practice Question: What major actions by an employer implicate employment discrimination laws? What reasons or justifications for an employer action are potentially prohibited by employment discrimination laws/

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