It seems counterintuitive to most U.S. workers that employers are able to discriminate against certain potential hires or employees, but it is in fact the case. While multiple pieces of litigation exist to curtail types of discrimination that focus on immutable characteristics, there are plenty of personality and appearance traits that may be considered legal discrimination. If you believe you have been the victim of discrimination in the workplace, it may be that you have, but it may also be that your employer has acted within the law. It is important to understand the bounds of employment law and to know your rights to fair compensation.
Legal Discrimination: Examples of Unprotected Categories
South Carolina’s law mostly mirrors federal law in terms of the categories of characteristics that are protected. In fact, some categories, like sexual orientation, are investigated by the federal Equal Employment Opportunity Commission (EEOC) even if they are local in origin—either because South Carolina law does not cover them or simply because the EEOC has the resources to do so more effectively. Either way, both the EEOC and the South Carolina Human Affairs Commission (SCHAC) are clear about what they protect and what they do not. This means that if you believe you have experienced discrimination based on a category not on the list, you may be on your own. Some of the categories left out include:
- Credit history. While you must consent to your credit being shared with a potential employer, it is still legal for them to refuse you work based on that history, even if not germane to the potential position.
- Height or weight. Only Michigan protects against weight discrimination.
- Having body modifications, such as tattoos or piercings.
- Perceived attractiveness or ugliness. If you are terminated for being too unattractive, in most cases, the firing will stand.
Discretion vs. Discrimination in the Workplace
It is a common refrain among employers when confronted with accusations of discrimination to argue that they have a right to exercise discretion in their hiring policies. This is true, at least in theory. An employer does not have to hire someone who is unqualified or would present a danger to current employees. But when an employer refuses an applicant or terminates an employee, they must do so based on reasons that do not violate antidiscrimination law. If there is a violation even unintentionally, the employer will be found to have discriminated. There is significant case law on this point.
This is also referred to as discrimination in practice (as opposed to discrimination on its face). There are two types of discriminatory laws or behaviors. A facially discriminatory behavior is one that openly discriminates against a specific subset of the general populace, such as the historical “no Irish need apply” trend in the 19th and early 20th centuries. The other type is discrimination in practice, when a law or action does not appear discriminatory, but in practice works to discriminate against a targeted group. The best example of this is seen in dress codes—an employer may prohibit hats or any other head coverings for safety reasons, but if it is not for a legitimate reason, such a rule may discriminate in practice against Sikhs, Orthodox Jews, or any other religious group which requires one’s head to be covered.
Contact An Employment Law Attorney
It can sometimes be difficult to determine when you have been discriminated against and when an employer has simply exercised discretion. Knowing which classes are protected can help work it out. If you have questions, an employment discrimination lawyer can help answer them. Attorney A. Christopher Potts and his Charleston firm are ready, willing, and able to help you with your case.
Contact us today to set up an initial consultation.