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Two Times Your Employer May Discriminate Against You – Legally

The United States has countless laws, at both the state and federal level, to guard against discriminatory treatment in the workplace. However, there are certain instances where behavior that would otherwise be considered discriminatory will pass legal muster because of the way U.S. discrimination laws are worded. It is important to be aware of these loopholes, so that if you encounter this kind of treatment, you are aware of your options and what they might, or might not, entail.

Not All Characteristics Are Protected

U.S. antidiscrimination laws establish personal characteristics that are considered ‘protected,’ meaning that they cannot be used as a basis on which to discriminate. While there are many different laws which protect certain individual characteristics, the most commonly cited are Title VII of the Civil Rights Act of 1964, which protects race/color, sex/gender, national origin, and religion, and the Americans with Disabilities Act (ADA), which establishes disability as a protected characteristic.

Since there are protected characteristics, it necessarily follows that there are unprotected characteristics, and using one as a basis on which to discriminate is the first loophole, so to speak. If an employer wants to discriminate on the basis of, for example, height, there is (at least in theory) nothing to stop them from doing so. That may change, depending on the way the employer actually acts, but at least as of now there are certain characteristics not covered by antidiscrimination law.

Bona Fide Occupational Qualifications

The other loophole in U.S. antidiscrimination law is when an employer claims what is known as a bona fide occupational qualification (BFOQ). A BFOQ is a characteristic that an employer claims is inherently necessary to the performance of the job in question. There are only three characteristics that may be claimed in this way: national origin, sex/gender, and religion, and an employer must affirmatively show that hiring for such characteristics is a necessity before it will be permitted to go ahead. Failure to establish the need for a BFOQ will result in adverse court decisions.

For example, an airline once tried to hire only female flight attendants, citing psychological reasons and passenger preference in trying to qualify gender as a BFOQ for its business purposes. The Fifth Circuit Court of Appeals disagreed, stating that the primary purpose of an airline is to ferry passengers from one destination to another, and sex or gender was not a necessary requirement to perform such a job.

Contact a South Carolina Employment Discrimination Attorney

There are rare circumstances where conduct that would be discriminatory in many situations simply is not. If you believe that you are being discriminated against at work, consult a South Carolina employment discrimination attorney from Hitchcock & Potts so that you understand exactly what you are facing. We have a team of experienced attorneys, like Attorney A. Christopher Potts, who have handled countless cases, and we are prepared to give you our best. Call our offices today to schedule a consultation.

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