The U.S. Supreme Court has established certain tests for determining whether disparate (different) treatment of a group is discriminatory and illegal. If the treatment is based on what the law refers to as a “suspect classification,” the disparate treatment will be subject to “strict scrutiny.”A suspect classification is some characteristic of the victim, typically immutable (one that cannot be changed, such as age, gender or race), that has no bearing on the person’s ability to perform his or her job. Under current Supreme Court rulings, there are four traits that are considered suspect classifications: race, national origin, religion and alienage (the status of being an alien).

Forcing employers to judge employees by their ability to do their job is forcing them to be rational.