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One definition of the word “discriminate” is “to distinguish by discerning or exposing differences.” All employers discriminate, probably every day. They not only distinguish employees by discerning or exposing their differences, but use those differences to make employment decisions.

For example, employers discriminate by:

  • Giving seasoned employees more challenging assignments,
  • Granting the most reliable employees more flexibility in their daily schedules, and
  • Paying high performers more than lower performers.

These are all discriminatory acts, but because they are not based on an employee’s membership in a protected class, they do not create the foundation for a claim of illegal discrimination under employment laws. This distinction is important. A common misconception among some employers, and perhaps even more employees, is that any perceived unequal treatment is illegal discrimination.

This is simply untrue. For discrimination to be illegal, an employer’s actions must be based on an employee’s membership in one or more of many protected classes defined by state and federal employment laws.