Discrimination
Discrimination can be plainly understood as differential treatment that is unfavorable to an individual because of that individual’s protected class, status, or characteristic. Sometimes differential treatment that is favorable towards an individual or group has an unfavorable outcome on others. Yet, favoritism is not always discriminatory. There must be a causal link between the treatment and the favored attribute, status, or characteristic.
Discrimination can take the form of disparate treatment, disparate outcome, or harassment.
Disparate Treatment
Disparate treatment occurs when a person is subject to an adverse or harmful action and there is a causal link that connects the adverse action to at least one of the person’s protected statuses. For example, a person could be denied a promotion because they are from another country. A student may be overlooked for an internship because they are transgender.
Disparate Outcomes
Disparate outcomes occur when an institutional decision is based on a facially-neutral policy, factor, or criterion but when it is applied it disproportionately disadvantages individuals of a protected class.
Harassment
Harassment occurs when an individual is subjected to invidious forms of mistreatment – such as name-calling, slurs, threats, inappropriate jokes, offensive graphics – that have the effect of denying them access to, or participation in, university programs or activities. This most often occurs when the concerning conduct is severe and/or pervasive. Severity is often judged by whether the acts or behaviors are physically violative, threatening, egregious or outrageous when evaluated from the perspective of a reasonable person. Pervasiveness is judged by the frequency of the acts or behavior or where they occur. The more common the behavior is, meaning it occurs regularly and in multiple places, the more likely the acts will be deemed as harassment. When people experience harassment, it often leads them to feel excluded from a workplace or educational environment because they do not want to be in those places. They often try to avoid people or situations where they fear they will be subjected to harassing behaviors.
Federal Laws that Prohibit Discrimination
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”
“It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.”
“The terms 'because of sex' or 'on the basis of sex' include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 703(h) of this title shall be interpreted to permit otherwise.”
“No otherwise qualified individual with a disability in the United States, as defined in section 705 (20) of this title, shall, solely by reason of his or her disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance…”
“No covered entity shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
“It is unlawful for an employer to discriminate against an individual in any aspect of employment because that individual is 40 years old or older, unless one of the statutory exceptions applies.”
“No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions, except where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex: Provided, That an employer who is paying a wage rate differential in violation of this subsection shall not, in order to comply with the provisions of this subsection, reduce the wage rate of any employee.”
“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance…”
“…[P]rohibits discrimination against protected veterans and pre-JVA veterans as defined in this part, and requires Government contractors and subcontractors to take affirmative action to employ and advance in employment qualified protected veterans.”
“A person who is a member of, applies to be a member of, performs, has performed, applies to perform, or has an obligation to perform service in a uniformed service shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that membership, application for membership, performance of service, application for service, or obligation.”
“It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee; or
(2) to limit, segregate, or classify the employees of the employer in any way that would deprive or tend to deprive any employee of employment opportunities or otherwise adversely affect the status of the employee as an employee, because of genetic information with respect to the employee.”
State Laws that Prohibit Discrimination
“The rights of conscience shall never be infringed. The State shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;”
“No religious or partisan test or qualification shall be required as a condition of employment, admission, or attendance in the state's education systems.”
“An employer may not refuse to hire, promote, discharge, demote, or terminate a person, or to retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against a person otherwise qualified, because of race; color; sex; pregnancy, childbirth, or pregnancy-related conditions; age, if the individual is 40 years of age or older; religion; national origin; disability; sexual orientation; or gender identity.”