Rex A. Christensen PLLC

Reach Rex A. Christensen at:

Indirect Versus Direct Discrimination
  1. Home
  2.  » 
  3. Employment Law
  4.  » Indirect Versus Direct Discrimination

What Is The Difference Between Indirect Discrimination And Direct Discrimination?

Direct discrimination is when an employer treats someone with disfavor or gives them less consideration on the basis of a protected characteristic, such as race, nationality, religion, sex or disability. Indirect discrimination is probably a little bit more common and occurs when there are policies or procedures in place that have the effect of discriminating against someone who falls into one of the protected classes.

Indirect discrimination does not necessarily involve the intent to discriminate. For example, if English is not your first language, and you are applying for a job that does not require the ability to speak English on a regular basis, but the company has a policy that requires an applicant to speak fluent English in order to obtain the job, then that policy would have the effect of indirectly discriminating against people based on national origin. The bottom line is that, whether the discrimination is direct or indirect, it is still illegal, and may provide a sufficient legal basis to pursue a discrimination claim.

Who Is An Employee Under Federal Employment Discrimination Laws?

Most of the workplace anti-discrimination laws apply only to employees, so it is important to know the difference between an employee and an independent contractor. Companies that hire independent contractors will not withhold taxes from their paychecks and will issue a 1099 form instead of a W-2 form. However, even if your boss calls you an independent contractor, and even if you receive 1099 at the end of the year, under certain circumstances you may still be considered an employee.

To be brief, a worker will be considered an employee if the company has control over her day-to-day activities — things like when she has to start work when she can take breaks, and how the work gets done. There may be additional factors that the courts and enforcement agencies like the EEOC will consider in deciding whether or not someone is an employee versus an independent contractor, but if a worker’s job is structured in a way that he has little say in how it gets done, then that person will probably be considered an employee. On the other hand, if the worker is simply given a task to perform and the person who hired her doesn’t care how or when she gets it done as long as she meets deadlines and other measures of performance, then she is rightly considered an independent contractor. This distinction is important because independent contractors are not considered employees and they are not generally protected by employment discrimination laws. However, even when a worker is legitimately an independent contractor, there will still be certain legal protections against discrimination. Whether you are an employee or an independent contractor, if you feel you have been the subject of discrimination, please contact an employment discrimination lawyer to see what protections may apply to you.

In addition, it is important to understand that certain anti-discrimination laws only apply to employers who have a certain minimum number of employees. For example, the Age Discrimination in Employment Act protects workers over the age of 40 from discrimination based on their age, but this does not apply if they work for an employer that has fewer than 20 employees. Similarly, the Americans with Disabilities Act prohibits discrimination on the basis of a disability or perceived disability, but it doesn’t apply unless the employer has at least 15 employees. This means that you can be an employee and receive a W-2 at the end of the year, but still not be protected by these employment discrimination laws.

For more information on Indirect & Direct Discrimination At Work, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling 1-480-582-1287 today.