Direct vs. Indirect Discrimination: What’s the Difference?

By Tom McKinney
NJ Employment Attorney

If you have been a part of the labor force in recent years, you have likely seen various videos or attended training about discrimination in the workplace. You are also likely aware that discrimination can be illegal when it is motivated by age, disability, race, sex, or other protected classifications.

Unlawful discrimination in any form can subject an employer to legal liability. Yet not everyone is familiar with the many forms discrimination can take. It can show up in rather obvious ways as well as through more subtle methods, but both clear and covert discrimination can harm you and create a hostile working environment.

Direct Discrimination Defined

When you and others think of workplace discrimination, many of the examples that come to mind are likely instances of direct discrimination. Discrimination is direct when a coworker or supervisor takes adverse action against you because of your characteristics.

Examples of direct discrimination include the following:

Poor Performance Reviews, Demotions, and Terminations

Direct discrimination occurs when a supervisor hinders your career advancement because of your age, race, sex, or other protected characteristics. This can happen if they give you poor performance reviews, demote you to a less-desirable position, or terminate you. 

To qualify as unlawful workplace discrimination, these and similar actions must be motivated by some protected characteristic you possess.

Sexual Propositions or Offensive Comments by Supervisors or Coworkers

Additionally, direct discrimination can occur if others make unwelcome and uncomfortable comments or jokes toward you. A supervisor or co-worker may ask you to submit to sexual acts or sexual intercourse in exchange for favorable treatment. You may feel excluded, demeaned, harassed, or threatened by this sort of verbal conduct. 

Again, these acts must be motivated by a protected characteristic to qualify as unlawful direct discrimination. 

Touching or Groping

Direct sexual discrimination can occur through uninvited sexual touching. This can be brushes or grabs on intimate parts of your body, or it can involve unsolicited back rubs, shoulder or neck massages, and other similar touches. These examples of touching are discriminatory because, by their very nature, they are often motivated by your sex.

Indirect Discrimination Differentiated

Unlike direct discrimination, which is a negative action or word motivated by your protected characteristics, indirect discrimination occurs when a neutral workplace rule disadvantages one group. 

In this case, the employer may have enacted the rule without any discriminatory intent, yet the rule still ends up affecting a certain population in the workplace differently than others.

Suppose that you work for a store that prohibits all employees from wearing any hats, beanies, or other head coverings while on the clock. At your workplace, there is a female employee whose religion requires her to wear a headscarf at all times she is in public. In this instance, the rule operates as indirect discrimination against her.

The person or group discriminated against by the rule must suffer discrimination on the basis of a protected classification for the rule to qualify as unlawful indirect discrimination. 

For instance, a company party where only sweets were served would not be unlawful discrimination against someone attempting to lose weight, but it could be if the person were diabetic. The former is not a protected characteristic, whereas the second one is.

Get Help from a Qualified New Jersey Employment Law Attorney

NJ Employment Lawyers, LLC is available to discuss your rights with you if you have been impacted by either direct or indirect discrimination in New Jersey. We can assist you in reporting your mistreatment and seeking compensation and other redress for your related losses. Call us today to learn more about your rights.

About the Author
Tom McKinney is a skilled employment law attorney with New Jersey Employment Lawyers LLC. He has a track record of success in all areas of employment law, including sexual harassment, discrimination, harassment, wrongful discharge, whistleblower claims and hostile work environment claims. Besides litigation, Tom handles severance agreements and severance package reviews/negotiations for over 100 people each year. If you have any questions regarding this blog, contact Tom here.