Permissible Discrimination in the Workplace

Introduction

In the United States, employees and job applicants are typically familiar with state and federal anti-discrimination laws. These laws serve a valuable role in safeguarding all Americans’ ability to obtain employment on fair terms without regard to characteristics like sex, race, national origin, and/or religion (amongst others). So pervasive is the idea that employers cannot discriminate against job applicants or employees that it may shock the sensibilities of some to learn that discrimination in the workplace is allowed against some employees based upon certain non-protected classifications.

Non-Protected Classifications in the Workplace

An employee or job applicant is not protected against discrimination leveled at the person based on non-protected classifications. In short, a “non-protected classification” is any characteristic about a person that the law has not determined to be deserving of legal protection against discrimination. The lists of what are and what are not protected classifications changes over time as society recognizes certain aspects about individuals as deserving of protection against discrimination. At present, the following characteristics are not protected under state or federal laws:

  • Political affiliation: Employers may choose to hire or fire individuals based on their political affiliations and activities. For example, a business may favor Republican policies and actively work to promote the passage of laws that it perceives to be favorable to its operations. Such a business may fire or refuse to hire an employee who actively advocates against the employer’s position, even if such activities are conducted on the employee’s own time away from work.

  • Credit history: Even after the economic downturn there are no laws protecting a job applicant or employee from discrimination based upon that worker’s credit history. An employer may lawfully deny a job to an applicant who has missed payments or who has had a foreclosure in his or her past. Note, though, that having filed for bankruptcy is protected – an employer cannot terminate an employee because that employee has filed for bankruptcy protection. Additionally, an employer may not terminate an employee because he or she has a single garnishment in place.

  • Employment history: Of course, an employer is free to deny employment to a job applicant who does not have relevant employment history.

Drawing a Line Between Protected and Unprotected Classes

discrimination in the workplaceEmployers who discriminate against employees or job applicants because of non-protected classifications still have reason to be cautious. Sometimes members of a certain non-protected class are also members of protected classes. For example, minority applicants may have poor credit histories or sporadic employment histories. In a similar way, minority employees/applicants or applicants and employees over a certain age may belong to a certain political party and espouse certain political views. When an employer discriminates against such a worker, the worker may misinterpret the reason for the discriminatory action and file a discrimination claim against the employer. It would then fall to the employer to demonstrate that the alleged discriminator action was not motivated in any way by the applicant’s or employee’s membership in a protected classification.

For example, an African-American job applicant may also be a member of the Democratic Party and active in local politics. An employer who denies employment to this individual on the ground that the person is a Democrat and his or her political views are opposed to those of the business could face a discrimination in the workplace claim. The employer would then need to defend its decision by establishing that the decision to deny the person employment was not based on the fact that the person was African-American. Depending on the circumstances of the particular case, this can be a difficult standard for some employers to meet.