When Employment Discrimination Gets Sneaky

When people think of employment discrimination, whether based on gender, race, age, sexuality or disability, they usually have a specific picture of what that looks like. They imagine bigoted tirades or inappropriate physical contact, or managers or executives outright declaring their refusal to treat certain kinds of people as equals. That said, with employers now more conscious of lawsuits than ever, discrimination can often take more subtle forms.

One common form of discrimination, for example, is paying someone less for a job than they would’ve been paid if they weren’t a woman, or black, or gay, or whatever other reason they have for discriminating. The problem is that, out of courtesy, people rarely share information about their income with one another, so people can spend years doing the same job side by side, with one person making significantly more than the other, without either knowing about it. Or, rather than discriminating on income directly, they might offer fewer benefits to different employees with the same job and qualifications: fewer sick days or vacation days, perhaps, or access to a 401(k) or stock options for one employee but not another.

However, discrimination can even be more subtle than that, and can even be an unintentional result of a policy that is, on its face, not discriminatory at all. For example, some workplaces may require their employees to take part in “team building” exercises that are perfectly fine for physically healthy people to participate in, but which could be dangerous (or simply impossible) for people with certain disabilities. Or, as in the classic case of Griggs v. Duke Power Co., an employer may award promotions based on external factors like performance on an IQ test or personality quiz, which often have their own built-in biases.

Legally, there are two standards for proving employment discrimination. The first standard is called the “discriminatory intent” standard, which requires direct proof that the employer was deliberately discriminating against people because they belonged to a “protected class” of people, such as those of a racial or religious minority, or against people with disabilities. The second standard is called the “disparate impact” standard, which requires proving that an employer’s policy was discriminatory as a matter of practice, even if it was neutral on its face.

In the case of these more subtle forms of discrimination, it’s often not possible to prove discriminatory intent, due to a lack of evidence (or simply because the employer genuinely didn’t intend to discriminate against their employees). However, proving disparate impact has its own complications, as it often relies on statistics and external expertise to show that a policy is discriminatory, even if it’s not intended to be. Either way, having a lawyer to guide you through the process is essential for either kind of discrimination suit.

If you have been discriminated against by your employer, it is important that you seek the guidance of an experienced New York employment lawyer who can protect your legal rights and advocate on your behalf during the legal process. Steven Mitchell Sack, the Employee’s Lawyer, is a New York employment lawyer who has considerable experience in handling the many aspects of employment law. To schedule an appointment with New York City employment lawyer Steve Mitchell Sack, call (917) 371-8000.

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