Interview with Joel Wm. Friedman Author of the book Examples & Explanations: Employment Discrimination

1. Intentional discrimination is one of the hottest of all subjects in this field, with good reason. What were the parameters for the section on intentional discrimination, and how did you define which examples were most relevant?

The matter on intentional discrimination focuses on the meanings ascribed to that term by the Supreme Court, the evidentiary framework that the Court created to guide parties and trial judges in handling employment discrimination lawsuits and unique issues arising out of these two topics.

2. How would you delineate the concepts of actionable discrimination and non-actionable? At what point in contrasting cases would you differentiate between the two?

Actionable discrimination comes into two forms: intentional and unintentional discrimination. There are separate chapters in the book dealing with the conceptual and evidentiary differences between these two concepts as well as the differing affirmative defenses that employers can assert in response to either of these types of claims.

3. The basic principles of non-discrimination on the grounds of race, color, religion, sex, and national origin are well known, but their application seems to be very mixed in practice. How would you illustrate these issues in practical terms, as clearly defining the basis for legitimate complaints of discrimination?

I illustrate it through the use of hypothetical problems that raise the most difficult and controversial issues and then provide an analysis of how such problems would be resolved by the courts.

4. What are the best practices for managing enforcement of anti discrimination in the workplace? Can you give an overview of a good working mechanism of management and reporting in these cases?

Management needs to be trained in the basic and subtle forms of discrimination, both conscious and subconconscious. Employers need to effectively communicate their commitment to nondiscrimination to employees in the form of workshops, detailed personnel manuals and the presence of officials whose job, in whole or in part, is to address claims of alleged discrimination in the workplace.

5. 'Non-intentional discrimination' is often also used as an out for those avoiding claims of direct discrimination. What's a good definition of non-intentional discrimination?

Nonintentional discrimination is as much a form of proscribed discrimination as intentional discrimination. It is defined as the use of a facially neutral employment policy that nevertheless generates a disproportionately disadvantageous impact upon a statutorily protected class that is not justified as job-related and supported by business necessity.

6. To what extent to enforcement remedies provide adequate responses in anti discrimination? Are civil remedies available, and if so, what would be examples of those remedies?

Claimants have the opportunity to file charges of discrimination with a federal agency, the EEOC, that will investigate the claim and make a preliminary determination. The agency can also attempt to obtain voluntary conciliation, although the agency does not have enforcement authority. The aggrieved that is not satisfied by the administrative process (or an employer's internal dispute resolution mechanism) can file suit and, if successful, obtain reinstatement with or without back pay, compensatory damages and, in case of willful violations, punitive damages. Damages are subject to a cap depending upon the size of the employer.

7. Chapter 4, A General Overview: Proper Plaintiffs, Suable Defendants, Covered Practices, Exceptions and Exemptions, is particularly relevant to anyone thinking of making a claim for discrimination. People often get confused regarding what's permitted and what's not. What are the 'exceptions and exemptions', and do they have any common denominators in legal terms which can be used as defining examples of common workplace exceptions and exemptions?

The few exceptions relate to the exemption given to religious entities to discriminate on the basis of religion and the inapplicability of most antidiscrimination statutes to the employment of non-US citizens that are employed by US corporations outside of the US. There are also rarely invoked exceptions concerning the uniformed members of the armed forces and members of Indian tribes.

8. Chapter 5, Special Proof Issues Under Title VII: Defenses, Sexual Harassment, and Retaliation relates to a huge area of high profile discrimination issues. Can you give us a synopsis of the requirements of special proof as a broad based view of the relevant situations?

This subject is impossible to discuss briefly. Suffice it to say that most antidiscrimination statutes not only proscribe differential treatment because of membership in a particular group, but also retaliation against individuals who oppose, informally or formally, practices that they believe to be unlawful.

9.What's the fundamental process of legal assessment of the merits of a claim of discrimination? Can you identify the type of information quality a person should have in order to make a viable claim?

A grievant will need either direct proof of differential treatment or circumstantial evidence that he or she was subject to an adverse employment action because of his or her membership in a protected group.