What is the Difference Between Direct and Indirect Discrimination? - BKL

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What is the Difference Between Direct and Indirect Discrimination?

Posted September 24, 2021 | Discrimination

Discrimination in the workplace can often be harder to understand than people might expect. Some might think that if discrimination was occurring in the workplace or they were the target of employment discrimination, they would be aware of it. When we think about discrimination and what it looks like, we might often think about direct discrimination.

However, this isn’t the way it always occurs, both in the workplace and outside of work. There are two types of discrimination: direct and indirect. What is the difference between direct and indirect discrimination?

While direct discrimination is more apparent, the latter is often subtle. Though indirect discrimination can be less obvious, it still negatively impacts employees and can make it difficult for them to perform their jobs. Whether you are an employee or employer, you must take steps to notice and stop both direct and indirect discrimination in your workplace.

Direct Discrimination

This is perhaps one of the most noticeable types of discrimination. When direct discrimination occurs, a person is treating someone differently because of their association to a protected class. This could be because the employee is of a certain age, race, gender, has a particular sexual orientation, and/or more. Other employees who don’t belong to this protected class don’t receive this negative treatment, while employees who share these characteristics alone are targeted.

However, direct discrimination doesn’t mean that the discrimination occurring is always obvious. Direct discrimination can still be subtle and difficult to prove. Discrimination at work, even when it’s directed at a person or group, doesn’t have to be blatant, such as using slurs. Even when an employee experienced direct discrimination, they can still question whether they’re actually being discriminated against.

The thin line between direct vs. indirect discrimination can make it difficult to seek justice. However, that shouldn’t refrain you from fighting for your rights. If you feel you are being discriminated against, you should consult an employment discrimination lawyer as soon as possible.

Examples of Direct Discrimination

To clarify things further, let’s look at a few examples of direct discrimination.

  • Rejecting a qualified female job applicant due to their gender.
  • Refusing to provide disabled workers with appropriate facilities.
  • Mistreating employees based on their religious beliefs.
  • Denying promotions to employees from different racial backgrounds.
  • Penalizing pregnant workers for taking medical leaves.
  • Sexually harassing workers.

Indirect Discrimination

While direct discrimination targets individual employees with certain characteristics, indirect discrimination occurs when employees are all treated the same, but certain employees are put at a disadvantage because of this. In any workplace, there are policies that all employees are expected to follow, but not all employees are exactly alike, so this can end up being harmful to some.

For example, there may be policies in place that require employees to wear their hair in a certain way or avoid certain hairstyles. While all employees are expected to follow this, it can negatively affect people of different races who have hair textures that don’t allow for this.

Another example would be requiring all employees to work on a day with significant importance for certain religious groups. All employees are required to do this, but it prevents certain employees from practicing a sincerely held religion. As a result, these types of discrimination are often difficult to notice.

For indirect discrimination to take place:

  • The company must have a policy that applies equally to everyone.
  • The policy must handicap people with a protected characteristic, as compared to those without it.
  • The victim should be able to prove that the policy has affected them personally.
  • The company cannot show any good reason for applying the policy despite the harm it brings upon the group.

Employers may also not be aware that indirect discrimination is occurring if they didn’t consider the ways different workplace policies would affect employees in protected classes different from theirs. Indirect discrimination may not always be intentionally done, but it still harms certain employees. Just because a policy wasn’t intended to negatively affect certain people, doesn’t mean that it isn’t discriminatory or shouldn’t be remedied.

Objective Justification

However, there can be exceptions where an employer may be able to discriminate and stay within the law. But this is only if they can provide a valid reason for the discriminatory policy in question, or when it’s a proportionate means of accomplishing a legitimate aim. This is known as objective justification.

Here are a few examples of objective justification:

  • An employer sends out a job advert for a firefighter, mentioning that the applicants must be at least 18 years old. While this may seem ageist at first, it’s only to ensure they are physically mature enough to train for the work and can legally work the necessary hours.
  • An employer hires an HGV driver who has recently been diagnosed with night blindness. So, they prohibit them from working the night shift to prevent road accidents.

In both these cases, the employer’s actions are reasonable and may be seen as serving a legitimate claim.

Direct vs. Indirect Discrimination in Short

While direct discrimination happens when someone treats you unfairly because of who you are, indirect discrimination refers to instances where a seemingly inclusive rule or policy proves to be disadvantageous to certain groups.

Both forms are equally harmful and unjust. Everyone deserves to work in an environment free of discrimination, and the one that nourishes equality.

Direct Discrimination

It occurs when:

  • Someone with a protected characteristic gets treated unfairly.
  • Someone thought to have a protected characteristic gets treated unfairly.
  • You are treated differently simply because of who you are.

It is also:

  • More apparent, but may not always be the case.
  • Challenging to prove despite compelling evidence.
  • Requires legal help from an experienced employment discrimination lawyer.

Indirect Discrimination

It occurs when:

  • A workplace rule or practice treats a group/employee with a particular protected characteristic differently.

It is also:

  • Difficult to prove, hence why it often goes unnoticed.
  • As equally harmful as direct discrimination.
  • Needs legal help to ensure justice.

How to Fight Direct and Indirect Discrimination

Regardless of its type, discrimination can take a heavy toll on your work life. It’s easy to feel helpless and disheartened. But the good news is that there are several ways to combat workplace discrimination and seek the justice you deserve.

  • Start by speaking to your employer.
  • Be sure to mention that you are taking the matter seriously and never hesitate to seek legal counsel.
  • If your employer does not respond, contact the Equal Employment Opportunity Commission (EEOC).
  • Keep a detailed record of the improper conduct, noting the date, parties involved, witnesses, approximate time, and details of the incident.

Contact an Employment Discrimination Lawyer for Help

It’s not really a question of direct vs. indirect discrimination. When you’re facing discrimination, be it direct or indirect, you need to ensure that your employer is aware. Ideally, your employer would take the proper next steps to stop these behaviors and actions from occurring, but this doesn’t always happen.

If you’re suffering from employment discrimination due to your association with a protected class, it may be time to consult with an experienced lawyer who understands how to handle these complex matters. At Brown Kwon & Lam, we know how difficult it can be for employees to face discrimination at work, which is why we work hard to provide the legal services that can help them.

If you believe you’re being discriminated against at work, contact our New York employment discrimination lawyers to discuss your situation.

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