What distinguishes unlawful discrimination from lawful discrimination?
UPDATED: February 20, 2013
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Many decisions made in everyday life can be considered discriminatory, and many forms of discrimination are matters of personal choice. If you prefer vanilla to strawberry ice cream, for example, strawberry growers have no civil rights claim against you. A life insurance company charges lower rates for 20-year-olds than 60-year-olds, which is also permissible. The government treats bank robbers differently from bankers, and bankers differently from bakers - but this does not suggest unlawful discrimination.
Protected Classes, Lawful Discrimination, and Unlawful Discrimination
Decisions become a form of unlawful discrimination when race, creed, national origin, ethnicity, or gender cause one person to be treated differently than another. Some states have laws that also protect against discrimination on the basis of marital status or sexual orientation. These are called protected classes.
The U.S. government created protected classes through anti-discrimination laws in effort to protect groups of people of similar characteristics who tend to be targeted by unlawful discrimination. Race was added to the books initially with the Civil Rights Act of 1866; later it was reiterated and strengthened with the Civil Rights Act of 1964. Color, religion, national origin, age, sex, familial status, disability status, veteran status, and genetic information are all among the protected classes that are shielded against unlawful discrimination at the federal level.
State Law and Unlawful Discrimination
Most states have laws that mirror or even strengthen these federal anti-discrimination protections. For example, sexual orientation and gender identity are among the classes that are protected only in some jurisdictions, but not in others. This means that if you live in a state where sexual orientation is not protected, and you are discriminated against on that basis, you have no recourse under state law or federal law. This, unfortunately, would be an instance of lawful discrimination.
Local Law, Lawful Discrimination, and Unlawful Discrimination
There are some limited cases where anti-discrimination laws exist not on the state or federal level, but on the city level. For instance, Philadelphia, Pennsylvania already has a city ordinance in place that prevents employers from looking at an applicant’s past criminal record and using that record as a reason not to hire the applicant. This form of discrimination, which is still lawful in the vast majority of jurisdictions, is particularly harmful to former inmates who are trying to get jobs and stay off the streets, but are prevented from doing so by the prejudices of potential employers. Only for certain jobs that are relevant to an applicant’s criminal background would such a criminal record check be permissible. For example, a financial services advisor could be checked for any past history of embezzlement.
If you are concerned that you have witnessed or were subjected to an instance of unlawful discrimination, but are unsure of the distinctions between unlawful and lawful discrimination in your jurisdiction, you should consult with an experienced attorney for help. A local attorney will be able to guide you to the right resources regarding lawful and unlawful discrimination in your state.