Q : How do I know if an action is discriminatory in violation of the law?

A : First, not all discriminatory actions are forbidden by law. The law only prohibits discrimination when it is based on a person's protected status--race, color, religion, national origin, sex, age or disability under federal law.

Thus, if an employer makes a decision because of an employee's race, that employer has engaged in prohibited discrimination. Paying a worker lower wages than other employees because that worker is an African-American black violates Title VII. But paying a worker lower wages than other employees because that worker is performing different kinds of job duties does not violate Title VII. The question is whether the reason for the difference in treatment is based on the employee's protected status. Different treatment based on protected status is called intentional discrimination or disparate treatment.

Title VII also prohibits conduct that has the effect of discriminating against individuals in a protected class even if the employer's reason for the different treatment is not based on protected class. For example, an employer may decide to hire only applicants who do not have custody of preschool age children. On its face the reason for the employer's hiring decision is not a protected class reason. However, the effect of this policy is to disproportionately screen out women applicants as compared to male applicants because more women are custodial parents. This policy, therefore, would have a discriminatory effect, also called adverse impact. Adverse impact discrimination is also forbidden by Title VII unless the employer can prove that the policy is required by business necessity and is significantly related to the requirements of the job.

The ADA defines discrimination not only in terms of disparate treatment and adverse impact but also in terms of a refusal to provide reasonable accommodation to an otherwise qualified individual with a disability.