Defining Today's Workplace

• Employer discrimination encompasses the processes of selection, advancement, firing an employee and pay. It essentially involves unfair decisions placing one person over another for issues other than normal work selection criteria, such as performance history, skill sets, competency and knowledge.
  
  For instance, and employer decides only men should be in positions of top management because they aren't as "emotional" as women in decision-making. The assumption of emotional behavior being attributed in a higher degree to women has no legal or scientific backing and only reflects a men-only personal preference. This would be a classic case of employer discrimination in promotions and advancement.
  
  

Statistics Make the Case

• Proving employer discrimination by hoping to find the instigators confessing their activities is a fruitless effort. As a result, many cases are brought against employers on the basis of their proven activities in recruitment and retention measured by data. Statistics of who was hired, promoted, fired, or paid better versus others can tell a story, particularly when the data is organized by demographics.
  
  Additionally, data needs to be sufficient for an aggrieved party to be able to show a pattern of discrimination. Allegations of employer activities to promote some employees illegally over others have to be demonstrated as a pattern over time, not just in one or two instances. This establishes not just ongoing activity but proof of conscious intent. It's easy to dismiss a random coincidence as a defendant employer. It's much harder to say discrimination was an innocent mistake when month after month the same activity is proven to occur with management's blessing.
  
  

Learning from Mistakes

• Employers and management teams are not stupid; they learn from mistakes, cut out the instigators that have compromised the company, and then move on. Those employers that continue to discriminate refine their approach to avoid getting caught again. Typically today's discrimination is couched in legal-sounding, allowable terms.
  
  For instance, statements such as "you don't seem to fit our company culture" or "you're not a team player" or "you're an introvert when we need extroverts" are all fair and valid workplace criticism to guide better behavior. However, such statements can be used to filter out undesired candidates without ever hinting true intentions. Again, statistics reveal what official statements and individual evaluations won't; patterns of discrimination occur in groups and numbers, not instances.
  
  

Unintentional Employer Discrimination

• It can happen from time to time that while an employer aggressively works to increase diversity by favoring under-represented candidates, substantial imbalances in treatment can occur to other employees. While not intentional, the activity can be found to be discriminatory in a legal forum. Frequently this scenario occurs with the use of standardized tests, hiring quotas, weighted test results in hiring, and physical characteristic criteria (such as strength, height, athletic ability, etc.). If the unbalanced criteria is associated with the job function and required to perform the job task, then the discrimination is not acted on legally and instead allowed. However, this is not the case in every jurisdiction and as companies move from market to market, problems can occur.
  
  

Contractors and Freelancers

• With the modern labor world moving more to contract and freelance modes of hiring help as necessary, various rules on employer hiring and promotion practices are losing applicability. This is because the contract and freelance approach is not an employer-employee relationship. It is instead a business to business contractual approach to obtaining labor services. This means that employers only have to make sure contract terms agreed to are met. Violations are only enforced under contract law, not employment law.
  
  This freelance/contractor change in the hiring approach offers more fluidity for those that want to be unethical in their selection of labor resources. And unfortunately, the law cannot protect targeted groups as effectively.