The Basics of Lawful and Unlawful 'Discrimination

• Author: Randy Freking
• Profession: Labor employment lawyer
• Pages: 11-19

11

CHAPTER

3

The Basics of Lawful and

Unlawful “Discrimination”

First, let’s look at what it means to discriminate. The Merriam Webster Dictionary defines “discriminate”

as “to make a difference in treatment or favor on a basis other than individual merit.” It provides as an

example, “to discriminate in favor of your friends.”

People discriminate all the time. We choose something or someone over another on the basis of fac-

tors other than merit. We might say, “I think I’ll patronize that restaurant even though the service is not

good, since the owner seems to be struggling.” This might be unfair to the better restaurant next door, but

it is certainly legal.

In the workplace, some confusion has been created by references in the media and popular culture

to “wrongful discharge” cases. A headline pronounces, “60-year-old ex-IBM worker wins wrongful

discharge suit,” implying that the employee won because he was wrongfully dismissed. A more accu-

rate headline would say, “Former IBM worker wins age discrimination suit.” If the ex-employee only

proved that he was wrongfully dismissed, he likely would have lost his case because he must also prove

that the company considered his age when making the decision or treated him differently than younger

coworkers.

Not All Discrimination on the Job Is Illegal

The word “discrimination” is commonly, but sometimes improperl y, used in the employment context

regarding what conduct constitutes unlawful discrimination. Employees often complain that someone or