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Legal Opinions

When is discrimination illegal?

by Paul Tapp, ATPE Member Legal Services Department managing attorney

When we hear the word discrimination, we generally bristle, and our minds easily make the jump to illegal. But is all discrimination prohibited by law? No.

To discriminate simply means to differentiate, or to treat two things differently. All educators discriminate, and they do it all of the time. They have to. Grading, by its very nature, is a constant process of discrimination. When a teacher gives one student an A and another a C on a writing assignment, the teacher is discriminating. He is recognizing a difference between the two writings and reacting by treating them differently. So some discrimination is not bad; it is even necessary.

The problem, then, lies not in treating two people differently but in why two people are being treated differently. If the A student’s essay exhibited careful research, a clear writing style, and careful editing and the C student’s essay was unresearched, sloppy, and obviously a first draft, no one would claim that the teacher’s discrimination was not entirely justified. But what if the two essays showed the same attention, care and skill and the only difference was that one was written by a male student and the other by a female? No one today would claim that such differing treatment was anything but illegal.

To be illegal, discrimination must be based on an impermissible motive and result in a negative action.

Impermissible motive

Nothing beyond the Golden Rule says that everyone has to treat everyone else the same at all times. As demonstrated in the grading scenario above, treating everyone the same would not even be desirable. However, both federal and state laws exist that prohibit discrimination based on certain impermissible motives. (Texas’ anti-discrimination laws are modeled directly on federal anti-discrimination law, so the two can generally be described together.)

A motive for treating two people differently is impermissible if it’s based on a status “protected” under the law. Both state and federal law have a specific list of protected classifications: race, color, disability, religion, sex, national origin and age. The law does not protect every status. Nor does it protect one group over another; rather, the law says that these classifications cannot be considerations in treatment at all.

Also, think about the many classifications that are not protected. For example, an employer can pay certified teachers more than para-educators. An employer can pay one assistant superintendent more than another assistant superintendent—as long as that decision is based on factors such as responsibility and seniority, not gender or age.

Negative action

To be illegal, discrimination must not only be based on an impermissible motive but also result in some type of negative action. Firing, demoting, refusing to promote or refusing to hire an individual because of her protected classification are clearly illegal. However, any action that would, in the words of Texas law, “deprive or tend to deprive an individual of any employment opportunity or adversely affect in any other manner the status of an employee” is also prohibited if motivated by classification. This phrase is vague, and the courts have struggled for years to determine when teasing and horseplay go too far or when jokes rise to the level of prohibited discrimination. Many socially unacceptable behaviors—even if rooted in prejudice—are not illegal.

Also, discrimination laws do not apply to everyone all of the time. You are free to choose your own friends and choose whom you wish to invite into your private home. The law targets individuals or entities that can and have caused disparate treatment in ways that lawmaking bodies have decided are unacceptable; therefore, the law generally applies to employers, to restaurants and hotels, to schools and to other entities with a great public impact. However, the law does also require an employer to provide a workplace free from illegal discrimination, so an employer can prohibit employees’ discriminatory actions at the workplace or within their professional capacities.

The burden of proof

We are blessed in Texas to live in a rich environment that is increasingly diverse and multicultural. One unfortunate byproduct of such diversity is a greater chance that individuals might feel they are being targeted because of their race, color, disability, religion, sex, national origin or age. The law prohibits such discrimination, but the law also has one critical and inescapable demand: evidence.

Individuals claiming to be victims of discrimination must prove that illegal treatment has occurred. This means first that they must prove that something bad enough has happened. In addition to proving a negative action, they must also prove that the motive for this negative action was their race, color, disability, religion, sex, national origin or age.

It is difficult to prove the motivating factor for an action. Being a member of a group historically discriminated against is not proof enough in itself. Neither is a feeling that discrimination might have occurred. Evidence must consist of an identifiable and clear pattern of unfair treatment or a clear communication of illegal intent by the person committing the discrimination—and in either case, there must be no other legitimate explanation. Otherwise, the law is a weak sword for defense.

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