Unlawful employment discrimination happens when employment decisions are affected by factors such as age, disability, ancestry, national origin, race, genetic information, military status, religion, or sex. Sex discrimination includes pregnancy discrimination. Genetic information incldues family medical histories. The employment action may result in disparate treatment of an employee or the action may be the result of a policy that has a disparate impact on the employee.
'Disparate treatment' and 'disparate impact' are two different kinds of discrimination. Disparate treatment means that the employer intends to treat one employee differently than another based upon a specific, prohibited factor such as age discrimination, race discrimination, or sex discrimination. For example, it happens when one employee is rejected for a job because the manager thinks older workers are less productive than younger workers. Disparate treatment discrimination is the most common type of discrimination.
Disparate impact discrimination is much rarer. It happens when an employer uses a practice that is fair in form but discriminatory in operation. In other words, an employment practice that operates to exclude a protected class of employees cannot be shown to be related to job performance. For example, a minimum height and weight requirement may disproportionately screen out women, and if the reasons for the requirements are not justified by business necessity, the employer is liable for sex discrimination. Similar policies can result in all kinds of discrimination including age discrimination, pregnancy discrimination, sex discrimination, disability discrimination, nationality discrimination, and race discrimination. For now, disparate impact discrimination claims based upon genetic information do not exist under federal law.
Not all discrimination is against the law. Employers are allowed to make business judgments based on factors other than those specifically prohibited. An employee who is fired for tardiness has been discriminated against when compared to another, on-time employee who was not fired. But this discrimination is not against the law. Employers properly and necessarily discriminate every day. Informed employers and employees know the difference between lawful and unlawful discrimination.
Age, disability, ancestry, nationality, race, military status, religion, pregnancy, and sex discrimination, is not allowed. Whether an employer intends to discriminate through disparate treatment or disparate impact, employees are entitled to compensation for the adverse consequences of unlawful discrimination but only for unlawful discrimination.