Q. What is employment discrimination?

A. Discrimination means drawing a distinction. In the workplace, discrimination occurs when employees in similar situations are treated differently based on a certain characteristic.

Not all discrimination is illegal: an employer may hire one of two equally qualified job candidates because he or she has a college degree, while the other candidate does not. The only kinds of discrimination that are illegal are those that we as a society have decided are so unfair that they should not be tolerated. The U.S. Congress and the Colorado General Assembly have therefore passed specific laws prohibiting employers from making important employment decisions based on age, race, gender, national origin, disability, and religious belief.

Q. How can an employee prove discrimination?

A. The most common ways to prove discrimination are direct evidence, circumstantial evidence, and statistical evidence.

Direct evidence typically consists of disparaging remarks that show actual bias on the part of the employer or employer's representative. Racial slurs and religious epithets are examples of direct evidence, and credible and independent witnesses who observe supervisors or managers who have made these remarks often provide the most compelling testimony in discrimination cases.

Unfortunately, employers who discriminate illegally are usually not so careless as admit to their biases. Courts have therefore historically allowed employees who claim discrimination to prove their claims by circumstantial evidence.

The U.S. Supreme Court in 1973 established the basic framework for proof of employment discrimination through circumstantial evidence. In a case involving an African-American employee of McDonnell Douglas, the Court permitted the plaintiff to establish a prima facie case by proving four elements: (1) the plaintiff is a member of a protected class; (2) the plaintiff applied for and was qualified for an available position; (3) the plaintiff was rejected despite being qualified; and (4) the position either remained open as the employer continued to search for applications, or the position was filled by a person not of the protected class. Courts have adapted this scheme to a broad spectrum of discrimination theories, including age discrimination, sexual harassment, and the Americans with Disabilities Act. In the most typical example, an employee who is performing adequately, yet is terminated and replaced by a person not in the protected class, has the essential circumstantial elements of a discrimination case.

An employee who proves his or her case circumstantially has not automatically proven discrimination. The employer still has the right to explain its actions by offering a legitimate reason. It is then up to the employee to try to show that the reason the employer has offered is a sham or a pretext, or that, but for illegal discrimination, the employer would not have taken the action it did. Ultimately, the government agency, judge or jury must then decide if the employer's action was motivated by illegal discrimination.

Q. What can I do if I believe I'm the victim of illegal discrimination?

A. You can report the incident or conduct to the U. S. Equal Employment Opportunity Commission (EEOC), to the Colorado Civil Rights Division (CCRD), or directly to your employer, particularly if your employer has an internal office or department that addresses equal opportunity issues. Which course of action is the best for you depends on the specific circumstances of your case. If possible, you should consult a lawyer about which course will be the most effective, and when to take these steps.

Eventually, you may also be able to pursue your discrimination claim in court. However, in most situations where there is discrimination, the law requires you to first file a charge with the EEOC or CCRD.  If you wait too long, you may lose the right to pursue any claim for damages you may have against the employer.

Q. What about the Americans with Disabilities Act?

A. The Americans with Disabilities Act (ADA) was intended to protect individuals with physical and mental disabilities from workplace discrimination. Unfortuately, the ADA is even more complicated than laws against other kinds of discrimination, and many Federal courts have taken a very restrictive view of many of its provisions.

The ADA prohibits "covered" employers (generally, those with 15 or more employees) from discriminating against any "qualified individual with a disability." The statute specifies three ways an individual can meet the definition of disability: the individual has a physical or mental impairment that substantially limits one or more major life activities, he or she has a record of such an impairment, or he or she is regarded by the employer as having such an impairment.

Q. What about sexual harassment?

A. Sexual harassment is a specific form of sex discrimination. It occurs when supervisory employees create or tolerate a work environment that is hostile to an employee because of that employee's sex. Actions that can contribute to a hostile environment include sexual assualts or offensive touching of employees, demanding sexual favors from subordinates, and sexually oriented statements, comments, jokes, or pictures that are intended to create an intimidating or offensive workplace. In some, but not all, cases, the employer is responsible for the acts of its supervisors in creating or tolerating a hostile environment.

The U.S. Supreme Court has drawn an important distinctions between situations involving only a hostile work environment, and cases where sexual harassment culminates in a "tangible employment action." Typically a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a change in benefits, is "tangible." If a supervisor takes a tangible employment action against the employee, the employer is responsible.

Where there is only a hostile work environment, the employer is still responsible if it created or maintained that environment through official, authorized actions. But if the employer was reasonably careful to prevent and correct promptly the harassment, and the harassed employee unreasonably failed to take advantage of opportunities the employer provided to stop the harassment or help the employee, the employer may not be responsible. For example, if the employer has announced a sexual harassment policy, and that policy tells employees who to complain to about harassment, an employee who does not lodge a complaint, and has no excuse for not lodging the complaint, will not be able to hold the employer responsible.

A hostile work environment must be sufficiently serious and pervasive before it will be considered illegal. While there is no clear standard for how much harassment makes an environment truly hostile, a single off-color joke will ordinarily not be enough. The supervisor's conduct must also be offensive to a reasonable person. An employee who is unusually sensitive, or who is offended by conduct that doesn't bother most people, will have a more difficult time winning a sexual harassment case.