Four Categories Of Discrimination Prohibited by Federal and State Law

Four categories of discrimination prohibited by federal and state law are disparate treatment, failure to accommodate, disparate impact, and present effects of past discrimination.

The March 30, 2005 decision of the Supreme Court in Smith v. City of Jackson serves as a reminder that employment discrimination can take several forms. There are, indeed, four distinct categories of discrimination prohibited by federal and state law.

Disparate treatment: This is the most common and easily understood type of discrimination. The employer simply treats one or more persons differently from others because of a protected status or activity. Harassment in the workplace, including sexual harassment, falls into this category of discrimination. To state a claim, a claimant must prove that the employer acted with a discriminatory motive.

Failure to Accommodate: The protection afforded to religion and disability under federal and state discrimination laws includes a duty of reasonable accommodation. Accommodation is synonymous with preferential treatment. A claimant need only show that that the employer failed to reasonably accommodate the known religion or disability of the claimant.

Disparate Impact: Sometimes, a facially neutral employment policy or practice has an adverse impact upon members of a protected group. The disparate impact theory holds that an employment practice which is fair in form may still be discriminatory in practice. A claimant need not prove discriminatory intent if he can show a statistical disparity in the manner in which a specific practice operates for a protected group to which he belongs.

Present Effects of Past Discrimination: The mere continuation of an employment practice can have the effect of perpetuating past discrimination against a protected group. Seniority and promotion guidelines are the principal culprits in perpetuating past discrimination. Affirmative action is the recognized remedy for curing the present effects of past discrimination.

Robert G. Chadwick, Jr., is a shareholder with the law firm of Campbell & Chadwick, P.C. His areas of practice are labor and employment, occupational safety and health, employee benefits (ERISA), TWC audits, and selected contract and tort litigation. He has 24 years of experience providing counsel for employment decisions and policies, drafting policies and agreements, representing clients in contract and settlement negotiations and representing clients in proceedings before arbitrators, administrative agencies, federal and state trial courts and federal and state appellate courts.

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