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Discrimination Due To Unprotected Characteristics

If you experience discrimination based on a characteristic such as race, gender or national origin, you are generally able to either bring a lawsuit or at least have your complaint investigated by the Equal Employment Opportunity Commission (EEOC). However, there are certain characteristics, especially in female-presenting people, which are often used as excuses to discriminate, but are not protected by Title VII of the Civil Rights Act of 1964 or any other standard employment anti-discrimination law. Depending on the characteristic and the specific situation, you still may be able to mount a claim, but it can be very difficult to determine its feasibility or likelihood of success.

Having A Criminal Record

Perhaps the most common characteristic that is not protected by Title VII but still gets used to discriminate is whether or not an applicant or employee has a criminal record. South Carolina has a recidivism rate of around 23 percent. This means that around one quarter of those convicted of offenses requiring jail time will reoffend. However, studies have demonstrated that finding regular employment is a critical step in lowering that rate. Yet many employers refuse to even consider hiring those with records, especially felony records. No one is entitled to a job, but it is not unreasonable to state that they are entitled to apply for a job if all other qualifications are met.

While some “ban the box” laws have been passed around the country (laws which ban asking about a potential employee’s criminal history), South Carolina does not have any currently on the books. However, there is interest, with initiatives being mounted in York County, in Florence and in the city of Spartanburg. The York County initiative was passed, while the Florence measure failed and the potential Spartanburg ban is still under review. “Banning the box” could cut down on or eliminate claims of this nature in terms of EEOC charges.

Weight Discrimination

Another very common characteristic on which discrimination is routinely based is weight, especially in those who present as female. Only one state, Michigan, currently has specific legislation on the books banning weight discrimination, and in general, the practice is seen as a fairly unavoidable one. Because weight is seen as a characteristic that someone can change, unlike race or ethnicity, more people and employers are indulgent of discrimination on that score. But weight discrimination is not covered by Title VII.

Despite its exclusion from the Civil Rights Act, weight discrimination is actionable sometimes, in rare cases, under the Americans With Disabilities Act (ADA). Within defined ‘normal’ parameters, height and weight are not considered to be disabilities, but outside those parameters, weight especially may qualify as a disability under the ADA definition (a “physical or mental impairment that substantially limits a major life activity”). Alternatively, a condition that qualifies as a disability may cause weight gain, such as some types of diabetes, and discriminating against an employee or interviewee in such a situation would generally qualify as actionable, because the disability led to the weight condition, and the two are inseparable. Disability is not protected under Title VII, but it is protected, as one might imagine, under the ADA.

Consult A Knowledgeable Attorney

Just because you have been discriminated against based on a characteristic not covered by civil rights law does not mean you were not mistreated. Depending on the situation, there may still be a way to hold your employer responsible for such behavior. Attorney A. Christopher Potts and his Charleston employment discrimination law firm can sit down with you and assess your case to see where it might be strongest. Contact us today to set up an initial consultation.

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