How Sneaky Employers Get Away With Pretextual Workplace Discrimination, and What It Means for You
Usually when we think about workplace discrimination, we think about discrimination based on
gender, sex, race, disability, age, religion, or sexual orientation. The Civil Rights Act, the American
With Disabilities Act, the Age Discrimination in Employment Act, and various state and local laws
make each of these types of discrimination illegal in at least some parts of our country. Some states like Hawaii and Illinois have also passed “Ban the Box” legislation to help prevent discrimination against felons in some stages of the employment process. But other areas of discrimination continue to be legal, most of the time. We say most of the time because, if these types of discrimination are really used just as a pretext to hide illegal discrimination, then these types of discrimination may also be illegal.
(Photo Credit: David Blackwell/Flickr)
What Is Pretextual Employment Discrimination?
The types of discrimination we are talking about are not all that different from various types of voting discrimination that were used in the last century to prevent members of minority races from voting in the United States. Historically, some areas of the US enacted things like literacy tests for voters.
These communities claimed that they were enacting the tests in order to require a certain amount of education amongst the electorate, but in actuality they were designed to prevent minority citizens, particularly African American citizens, from voting. Employers can do the same thing in the workplace by setting seemingly non-discriminatory job requirements that in reality make it more difficult for members of a protected class to get or keep a job. Proving this type of discrimination can be much more difficult than proving more overt forms of discrimination, but that does not mean it does not happen.
What Are Some Types of Pretext Used for Discrimination?
There are various types of pretextual discrimination. Often on their face they seem like legitimate things for an employer to be concerned about in making employment decisions. The problem arises when theses seemingly benign factors are used instead to allow an employer to hid discrimination based on membership in a protected class. Just a few examples include:
● Appearance discrimination: This sort of discrimination often involves things like dress codes or grooming codes, and it can be used as a method of covering up racial or even religious discrimination. While employers can obviously have a legitimate interest in having their employees look professional, if these sorts of codes are used only to prohibit hairstyles worn by a particular race or facial hairstyles or garments worn by members of a particular religion, then they may be a pretext for an illegal form of discrimination.
● Educational discrimination: A common example of this is where employers require a high school diploma for a job that does not actually require a high school diploma to perform the job. This sort of discrimination can be used to cover disability discrimination, particularly against individuals whose learning disabilities impacted their ability to earn such a diploma.
● Technology discrimination: If a job actually requires technological proficiency to do the job, then an employer’s requiring it is fine. However, if technological proficiency is not actually required to get the job done, this may be used as a pretext to cover up unlawful age discrimination since older workers are often not as technologically proficient as their younger counterparts.
● Physical strength discrimination: Many jobs require a certain amount of physical strength to perform them. However, if a job does not actually require the amount of strength an employer claims it does, then this sort of discrimination may be a pretext to hide disability discrimination or sex/gender discrimination.
Tell Us What You Think
Do you know someone who has been fired or not hired for a reason that you think may have been a pretext? We want to hear from you! Leave a comment or join the discussion on Twitter.
Dan Kalish is a partner and founder of HKM Employment Lawyers (www.hkm.com), an employment law firm that represents individuals nationwide. A graduate of Harvard College and Yale Law School, Dan frequently speaks and writes about issues related to employment law on hkm.com/employmentblog.