When is Discrimination Allowed?

December 31, 2015

Is discrimination ever legal? The short answer is yes.

Federal anti-discrimination laws set minimum national standards all states must comply with; however, states and localities may pass additional laws and regulations that increase protections. Discriminatory treatment is only illegal if a person is part of a legally defined protected class. A person is part of a protected class if they possess the characteristic that defines the class. Federal law classifies the following as protected classes:

• Race – Civil Rights Act of 1964
• Color – Civil Rights Act of 1964
• Religion – Civil Rights Act of 1964
• National origin – Civil Rights Act of 1964
• Age (40 and over) – Age Discrimination in Employment Act of 1967
• Sex – Equal Pay Act of 1963 and Civil Rights Act of 1964
• Pregnancy – Pregnancy Discrimination Act
• Citizenship – Immigration Reform and Control Act
• Familial status – Civil Rights Act of 1968 Title VIII: Housing cannot discriminate for having children, with an exception for senior housing
• Disability status – Rehabilitation Act of 1973 and Americans with Disabilities Act of 1990
• Veteran status – Vietnam Era Veterans’ Readjustment Assistance Act of 1974 and Uniformed Services Employment and Reemployment Rights Act
• Genetic information – Genetic Information Nondiscrimination Act

States and localities can and do pass laws creating other protected classes. For example, New York law includes all the Federal classes and it expands protected classes to include:

• Age (18 and older)
• Marital status
• Sexual orientation (includes perceived sexual orientation)
• Lawful use of any product or lawful recreational activities when not at work
• Observance of the Sabbath
• Political activities
• Use of a service dog
• Criminal accusation
• Domestic victim status

A person may be a member of another group with a defining characteristic that is not protected by a Federal, State or Local law and an employer may discriminate against that person legally because that class of person is not a legally protected class. For example, being overweight is not a protected class under Federal law. Therefore, an employer located in Georgia could take a negative employment action against an employee because he is overweight and it would not be illegal discrimination. Another example is being left-handed. An employer could refuse to hire anyone who is left-handed for no other reason except that he does not like left-handed people and it would not be illegal discrimination.