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Can Employment Discrimination Ever Be Legal?

People in the United States are raised to believe that discrimination is always illegal. But can employment discrimination ever be legal?

There are certain situations in which an employer can legally discriminate against a certain type of person or people with a certain characteristic. At its heart, a form of discrimination is only illegal if a law has been passed to outlaw it. However, there are times that it’s quite difficult to determine when discrimination has actually occurred. It’s a good idea to contact an experienced attorney in these times.

A Patchwork Of Protections

The main U.S. federal antidiscrimination law cited is Title VII of the Civil Rights Act of 1964.

At the time of its passage, it banned discriminatory treatment on the basis of race, color, religion, national origin, and sex/gender. Over time, amendments to the Civil Rights Act have protected more characteristics.

For example, the Pregnancy Discrimination Act (PDA) was passed in 1978, which added pregnancy to the list of protected characteristics. The Age Discrimination in Employment Act (ADEA) was added for protection against age discrimination.

In the United States, if there is not a law or a Supreme Court ruling stating that a characteristic is protected from discrimination, it’s assumed that the characteristic is not protected. For example, until 2020, sexual orientation and gender identity were not addressed in any federal antidiscrimination law or ruling. Thus, it was implicitly understood that discriminating on that topic was not legally actionable. However, since the Supreme Court’s ruling in Bostock v Clayton County, sexual orientation and gender identity are now protected characteristics.

Two Types Of Legal Discrimination

There are two types of situations in which an employer may, at least in theory, legally discriminate:

The first type is if the employer declines to hire or commences negative employment actions (like demotion or firing) against someone on the basis of a characteristic that is not covered under any anti-discrimination law. A common example is weight—while one state, Michigan, does have a law barring weight-based discrimination, no other state does. If an employer in South Carolina wished to avoid hiring overweight people, they can in theory do that, without having to justify their policy.

The second type of situation in which employment discrimination is ever legal is using what is known as a bona fide occupational qualification (BFOQ). While race can never be an excuse to discriminate under any circumstances, other protected characteristics can sometimes be a justification for discriminating if doing so is “reasonably necessary” to the “normal operation” of that business. For example, in past cases, it has been held that an age restriction on working air traffic controllers qualifies as a BFOQ (even though age is a protected characteristic). The reasoning is because being an air traffic controller requires exceptional reaction time and reflexes, which generally dull with age.

Contact A South Carolina Employment Discrimination Attorney

It can feel very unfair if an employer denies you an opportunity based on a characteristic you cannot change. However, the law is what it is, and understanding your rights can still help you in the future. If you have questions about employment discrimination, contacting an experienced South Carolina employment attorney can help. Attorney A. Christopher Potts has been handling these cases for years and is ready to assist with yours. Call our offices today to schedule a consultation.

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