What is discrimination in the workplace threshold?

We know that federal laws prohibit employers from discriminating against their employees. But what is discrimination in the workplace threshold, i.e. when a certain kind of treatment actually becomes discrimination? When one would know that he or she was treated illegally and could seek legal protection against discrimination?

Title VII of the Civil Rights Act of 1964 made it illegal for employers to discriminate against their employees on the basis of sex, race, color, national origin, and religion. This rule applies to “compensation terms, conditions, or privileges of employment,” i.e. basically to everything related to hiring and firing, compensation and benefits, retirement plans, disability leave, classification of employees, transfer and promotion, as well as other employment issues.

However, it was not clear how to apply those general rules to real life. What exactly should you prove to have a solid discrimination in the workplace case? One of the first answers to this question we can find in 1973, when the Supreme Court defined the threshold for the plaintiff as the “but for” cause of the employment issue (McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

According to the Court, the case would be solid, if the plaintiff could prove that what happened wouldn’t happen unless the employer were not biased toward the employee on the basis of sex, race, color, national origin, or religion. However, the “but for” test was hard to meet. Employers could appeal to poor performance or other job related issues as the cause for a negative action even without unlawful discrimination.

In response to that situation in 1989 the Supreme Court let mixed motive claims be brought to court by interpreting the Title VII as “meant to condemn” even those employment decisions that were “based on a mixture of legitimate and illegitimate considerations.” (Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). At the same time the Court required plaintiffs to demonstrate a “direct evidence” of discriminatory motives.

However, this “direct evidence” requirement was loosened by the Civil Rights Act of 1991, which stated that if any unlawful considerations such as race and color happen to be motivating factors for any employment decision, this kind of employment practice would be illegal even if “other factors also motivated the practice.” But the law did not clarify the difference between circumstantial and direct evidence, i.e. the threshold of the discrimination in the workplace was not clear yet.

The issue was resolved only in 2003 when Supreme Court virtually abolished the “direct evidence” requirement by arguing that if Congress wanted to require the “direct evidence,” it would include the appropriate wording in the Civil Rights Act of 1991 (Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003). Since then plaintiffs could base their claims on circumstantial rather than direct evidence to prove unlawful discrimination at work.