I find myself giving this speech to callers about three times a week, so I thought I’d post it here and just direct them to a more detailed explanation.

Here’s the setup. Someone is working at a company and doing a good job. A new person is hired, and for whatever reason, the boss really hits it off with that new person. They go to lunch together every day and socialize after hours. Soon, it becomes apparent that the boss doesn’t hold her new found friend up to the same standards as everyone else.  She is allowed to commit infractions that would get anyone else written up.  The final straw comes when a promotion becomes available, and the new person is given the position to the exclusion of better qualified employees with more seniority. One of the employees that was passed over for the promotion calls to say, “that’s discrimination!”

Discrimination Another common variation on the story arises from an interoffice squable that results in a termination.  Sometimes it will be an actual physical altercation, or it may be the case of two employees pointing their fingers at one another, each claiming the other is responsible for a short cash drawer or falsified documents.  Without investigating who was at fault, the company keeps the favored employee and fires the other.  The terminated employee will call claiming “discrimination” based only on the fact that he or she was treated differently than the other employee (i.e., they were fired while the other employee was not).  I even get calls from people who think nepotism is somehow illegal, as though it is against the law for someone who owns a company to prefer their own children over employees.

Not all discrimination is bad or illegal.

All of these examples constitute discrimination, but they are not forms of illegal discrimination.  There is no law or even any good reason that you must be treated like everyone else.  Discrimination can be a good thing.  We all discriminate on a daily basis.  If you are married, you discriminated against the entire world when you chose that one spouse to the exclusion of all others. You discriminate when deciding who will be in your circle of friends, favoring those with similar interests and shying away from the felons. If you are working for a company, then you discriminated against other places you could have worked, and your boss discriminated against all the other candidates when he or she hired you. When you get a cup of coffee at Starbucks, you are discriminating against all the other coffee shops. Professional sports are rampant with discrimination, only hiring those who are the tallest or fastest or strongest.

Bad discrimination arises when the reason for the discrimination is based on an arbitrary and mindless criteria.  We have decided as a society, rightfully so, that it is unfair to deny someone employment on the basis of their race, nationality, religion, gender, etc. These are called “protected classes” because of the history of discrimination they have suffered.  It is unlawful to discriminate against a member of a protected class because they belong to that protected class. (Another point lost on many – you can discriminate against a member of a protected class if the discrimination has nothing to do with their race, nationality, gender, etc.)

So back to our first example. Can the caller sue for discrimination because the boss promoted her friend even though she was less qualified and had less seniority?  That depends on the motivation. If the boss promoted the friend only because she likes her more, that’s fine. But her preference cannot come from a dark, discriminatory place in her soul. If her preference for that person arises from her race, age, gender, etc., then that is wrong. This is how so-called reverse discrimination arises. Say a supervisor is Vietnamese, and hires someone else of that nationality. They may well have an instant bond given their backgrounds and language. When time comes for promotion, with no evil motive she may well give preference to her fellow countrywoman because she seems so personable, not realizing that perception is coming from the fact that they share a nationality. That preference for one nationality over another would constitute impermissible discrimination.

The fact that all discrimination is not unlawful comes as a shock to many employees. For example, tattoos have become more and more prevalent in American society, leading to more and more calls to my office from employees who have been fired or not hired in the first place because of their tattoos. They assumed there would be protection from discrimination, but people with tattoos are not a protected class, and discrimination against them is not illegal.