Most countries have some law that makes it illegal to discriminate against someone because they are a member of some protected class. But what happens if A believes wrongly that B belongs to some protected class and discriminates against B?

For example: Say in the USA the new owner of a company fires all male gay employees. He also fires Bob, who he thinks is gay, but who actually isn't. Would Bob be protected by anti-discrimination laws?

4 Answers 4


29 CFR 1601.34 states "These rules and regulations shall be liberally construed to effectuate the purpose and provisions of title VII, the ADA, and GINA" (by contrast 29 CFR 1606.4 says "The exception stated in section 703(e) of title VII, that national origin may be a bona fide occupational qualification, shall be strictly construed". A "liberal construal" of the rules would include as many instances as one could interpret as being prohibited, given the purpose of the underlying legislation. The purpose of title VII is to prevent people from using certain considerations as a basis for employment, so a liberal construal of the act would extend to "because of a belief that X is the case", as well as "because of the fact that X is the case". In addition, 29 CFR 1607.3 says

The use of any selection procedure which has an adverse impact on the hiring, promotion, or other employment or membership opportunities of members of any race, sex, or ethnic group will be considered to be discriminatory and inconsistent with these guidelines, unless the procedure has been validated in accordance with these guidelines, or the provisions of section 6 below are satisfied.

Firing on the basis of belief that a set of individuals has a protected characteristic obviously has an adverse impact on the protected class, and is accordingly prohibited, even when one or more individuals is not in the protected class.

Switching to state law, in Cowher v. Carson & Roberts the relevant question is whether there had been religious discrimination against plaintiff, who was not Jewish. The decision rests in part on the finding Lehmann v. Toys 'R' Us, 132 N.J. 587 that "it is the harassing conduct that must be severe or pervasive, not its effect on the plaintiff or on the work environment" – this basically isolates the particulars of the discriminee from the actions of the discriminator. In Cowher, the lower court held that "plaintiff could not meet the first prong of the Lehmann test because he was not Jewish, and that the allegation that he was perceived to be Jewish was insufficient". The higher court disagreed. Drawing on case law pertaining to handicaps as a basis of discrimination, the court stated

Distinguishing between actual handicaps and perceived handicaps makes no sense. For example, in the case of racial and religious discrimination, the Law Against Discrimination cannot reasonably be read to prohibit a landlord from refusing to rent to a member of a racial or religious minority, but to allow a landlord to refuse to rent to a person who is only perceived by the landlord to be such a member.

The general principle identified by the court is that

there is no reasoned basis to hold that the LAD protects those who are perceived to be members of one class of persons enumerated by the Act and does not protect those who are perceived to be members of a different class, as to which the LAD offers its protections in equal measure


Would Bob be protected by anti-discrimination laws?


If the employer fires Bob on the basis of him being gay, then the employer would commit direct discrimination even though they are mistaken about Bob's actual sexual orientation.

Section 4 Equity Act 2010 establishes sexual orientation as a protected characteristic, and section 13 creates the offence of direct discrimination:

(1) A person (A) [employer] discriminates against another (B) [Bob] if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.


There is no requirement for victims to have the relevant protected characteristic to be unlawfully discriminated against - it's the motivation behind the discrimination that makes it unlawful. The supporting Explanatory Notes to section 13 states that:

This definition is broad enough to cover cases where the less favourable treatment is because .... the victim is wrongly thought to have [a protected characteristic].


The Notes then go on to offer an example of a similar scenario to the OP:

If an employer rejects a job application form from a white man who he wrongly thinks is black, because the applicant has an African-sounding name, this would constitute direct race discrimination based on the employer’s mistaken perception.


In the U.S. most hate crime laws will include the phrase "actual or perceived" when discussing protected classes. As such, the hate crime occurs when someone is victimized in criminal manner because of the offender's belief (whether correct or not) that the victim is a member of a protected class of people and they are committing the crime because of the victim's status as a member of a protected class. While the scenario is not an example of a hate crime, in a scenario where Bob was a victim of a crime due to his perceived status as a gay man when he is in fact a straight man, than his attackers would still be guilty of a hate crime since they perceived Bob to be gay and were motivated by homophobia to attack Bob.

For a real example, there was a marked rise in hate crimes against members of the Sikh community in the U.S. following the 9/11 attacks. In the Sikh religion, men are forbidden from cutting their hair, which means that many Sikh men have long thick beards and will wear turbans to keep their long head hair in check (I believe it's also done for modesty purposes). This makes them look like a stereotypical Arabic/Mid-East/Muslim stereotype to Americans who are ignorant of the difference, resulting in many Sikh's being the target of hate crimes for the mistaken belief that they were Arabic or Muslim. These crimes were charged as hate crimes when prosecuted despite the fact that they believed their victims were Muslim and/or Arabic, despite the fact that most Sikhs in the U.S. are of Indian decent and the religion is Dharmic and not remotely related to the Abrahamic faiths, let alone to Islam (and in fact, has historically been persecuted during the Mughal Empire period of Indian History, which was Muslim in nature.).


Whether Bob would be covered by anti-discrimination laws actually depends more on where Bob lives/works in the United States. Only 22 states plus DC enumerate sexual orientation as a protected class regarding employment. In 25 of the remaining states, localities may have extended protections to include sexual orientation. In the remaining three states: Arkansas, Tennessee, and North Carolina, localities are forbidden to offer protections to any additional classes that the state government hasn't enumerated.

If Bob lives/works in one of the 22 states, DC, or a locality which specifically enumerate sexual orientation as a protected class, termination due to perceived sexual orientation is forbidden under the same logic as actual sexual orientation. The unlawful discrimination is a function of perception: valid or otherwise.

In all other areas, whether the perception is valid or not is moot, as the action taken as a result isn't unlawful.

  • 1
    I think you missed the point of the question completely: The question was whether a person who was falsely believed to belong to some protected group and is discriminated against has the some protection as somebody who is correctly believed to belong to that protected group.
    – gnasher729
    Sep 5, 2016 at 8:15
  • This answer and that only 22 states protect sexual orientation was wholly invalidated by Obergefell v. Hodges, 576 U.S. 644 (2015). - "sex" in the 14th amendment includes sexual orientation under Obergefell.
    – Trish
    Jul 12, 2023 at 11:51

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