What is Employment Discrimination?

Employers are generally allowed by the law to hire, promote, discipline, and fire employees however they want to. The law does not require them to be fair or reasonable or to make smart business decisions. Almost any reason is a legal reason unless the employee can prove the employer was motivated by an illegal consideration. Most of these illegal considerations fall into two groups.

The first group of illegal considerations includes six legally-protected characteristics. These include:

• Age
• Race
• Gender
• National Origin (e.g., Hispanic)
• Religion
• Disability

An employer is free to fire someone who is female or Hispanic, for example, it just can’t fire them because they are female or Hispanic.  Gender discrimination can take several forms. These include treating someone differently because they are female (for example, holding them to a different standard of performance), sexual harassment, and pregnancy discrimination. With some exceptions, these kinds of claims can only be brought against an employer who has 15 or more full-time employees.

The second group of illegal considerations includes certain legally-protected activities. Some of the protected activities that arise in lawsuits most often include the following:

• Pursuing workers’ compensation benefits
• Complaining about discrimination based on age, race, gender, national origin, religion, or disability
• Taking leave to deal with a medical emergency under the Family Medical Leave Act (“FMLA”)
• Medical personnel such as nurses reporting patient abuse or neglect
• Government employees “blowing the whistle” on illegal activities
• Military service
• Missing work to serve on a jury

An employer can fire someone who has filed a workers’ compensation claim or complained about sexual harassment, it just can’t fire them because they did those things.  These kinds of allegations are often referred to as “retaliation” claims, because the employee is usually claiming that the employer retaliated or took action against the employee for engaging in the protected activity.