Introduction
I believe the first scenario represents legal discrimination, whereas the second scenario is an example of illegal discrimination. The crucial feature that distinguishes these situations is the data provided to support discriminatory employment policies.
Body
It is the law and its interpretation that distinguish legal discrimination from an illegal one. Discrimination is considered illegal if the law states that explicitly, thus creating a protected class (Cope, n.d., para 2). Without such specifications, discrimination is considered legal because it concerns a group that is not stated as a protected class in the legislation. For example, people without smartphones are not stated in any law against discrimination; therefore, not hiring a person because they do not have a smartphone is not considered illegal. The anti-smokers employment policy is another example closer to real-life (Cope, n.d., para. 13). However, even discrimination against individuals of a protected class can sometimes be considered to be legal. Such a procedure happens through bona fide occupational qualification, BFOQ.
A BFOQ defense presupposes that the employer can provide straightforward and unmistakable evidence. The presence of relevant solid data is necessary (HR, year, para.5). Through this legal defense, some discriminatory practices become legalized (Chapter 8, para. 38). In the first scenario, the discriminatory employment policy seems to meet the BFOQ defense criteria. It shows that research demonstrates data that goes to the business’s essence and that the results are solid. In the second scenario, there is no data justifying discrimination. The discriminatory employment policy is based on arbitrary and stereotypical premises about the women’s aim and will to become mothers (Congressional Research Service, 2015, p.2). It is a paternalistic concern, not scientific research; thus, this scenario is an example of illegal discrimination.
Conclusion
To sum up, the second scenario presents an illegal form of discrimination since the rationale behind it is not scientific but stereotypical and arbitrary. In its turn, the first scenario is very likely to be an example of legalized discriminatory employment policy since it is supported by solid data that goes to the essence of the business.
References
Chapter 8: Manager’s Ethics: Getting, Promoting, and Firing Workers.
Congressional Research Service. (2015). The pregnancy discrimination act and the supreme court: a legal analysis of Young v. United Parcel Service.
Cope, T. K. (n.d.). Lifestyle discrimination: is it legal?
HR. (2002). Legal discrimination in four letters: BFOQ.