Discrimination in the Workplace

Employment discrimination or harassment happens when adverse actions are taken against an applicant or an employee because of the individual's race, skin color, national origin, gender, disability, genetic information, pregnancy, religion, age, or relationship to another person. A group of employees who share common characteristics like these is called a protected class. Discrimination may be blatant and obvious like name calling, or it can be very subtle and hidden.

Sexual Harassment

Sexual harassment is a kind of discrimination under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission (EEOC) defines it as "unwelcome sexual advances" or other actions that create an intimidating or hostile place to work. For example, it's not proper to comment on how a co-worker looks or to tell explicit jokes. If a supervisor asks for sexual acts in exchange for a promotion or job security, then that is "quid pro quo" sexual harassment.

LGBT Discrimination

In recent years, gay and lesbian people have made significant steps toward equality in marriage, but they are still not part of a protected class in terms of employment discrimination. Such adverse treatment is still legal unless you live in one of the 20 states that have their own laws on the books to provide protection. The federal Employment Non-Discrimination Act of 2009 would ban discrimination based on sexual orientation and gender identity, but it has been held up in Congress.

Discrimination in the Workplace

The act of discriminating means giving unequal treatment. In terms of employment, it is any workplace action such as hiring, firing, demoting, and promoting tied to a bias resulting in unfair treatment. With just a few exceptions, it is illegal under several different federal laws. Many states also have their own statutes that may be even more forceful than the federal versions.

  1. Title VII of the Civil Rights Act of 1964 outlaws' workplace discrimination because of race, color, religion, sex, and national original. It covers all private employers, as well as state and local governments, and educational institutions with at least 15 people employed. This Act is enforced by the Equal Employment Opportunity Commission (EEOC).

Title VII makes discriminating against an employee or job applicant based on race or color unlawful, especially as it relates to hiring decisions, terminating, promoting, compensating, training, or other favorable or unfavorable actions toward said employee. It also applies to managerial or employment decisions made based on an assumption or stereotype about an employee's performance, abilities, or skills because of their race.

Title VII encompasses both intentional discrimination and neutral job policies that disproportionately exclude minorities and are not job-related. Equal employment opportunity cannot be denied because an employee is married to or associated with someone that is a different race; associated with an ethnic organization or group, or attends or participates in schools or religious assembly with certain minority groups.

Title VII also deals with harassment based on a person's race or color. This harassment includes the use of ethnic slurs, insensitive humor, offensive comments, and other verbal or physical actions that result in a hostile atmosphere. It is also a violation to isolate or segregate any group or employee from the rest of the company or customers.

  1. The Rehabilitation Act of 1973 applies the protections of Title VII to employees of the federal government as an employer.
  2. The Lilly Ledbetter Fair Pay Act clarified when the statute of limitations starts for a claim of discriminatory pay practices through Title VII and the ADEA. It states that an unlawful treatment occurs when the discriminatory policy goes into effect but also when the employee is subjected to it, upon hire date for example. It also establishes that a new offense occurs every time that policy is applied, as in every pay day.
  3. The Equal Pay Act outlaws' compensation discrimination between men and women who work under similar conditions. It covers the same employers who fall under the federal Fair Labor Standards Act (FLSA).
  4. The Pregnancy Discrimination Act (PDA) is a subset of Title VII and prohibits discrimination based on pregnancy, childbirth, or related medical conditions.
  5. The Family and Medical Leave Act (FMLA) makes it illegal to take adverse action against a woman based on the fact that she is pregnant, or against parents in general, and it also applies the same protection to employees with other serious health circumstances. In 2008, two more types of FMLA time were added to give protected leave to the family members of those serving in the military.
  6. The Age Discrimination in Employment Act (ADEA) outlaws' discrimination against employees over the age of 39. It covers private employers who have 20 or more people on the payroll, state and local governments (including school districts), employment agencies, and labor organizations. Under the ADEA, one cannot be discriminated against because of one's age. This discrimination includes any term, privilege, condition related to their employment such as a hiring decision, being fired, promoting, compensating, training, or other work-related benefits.
  7. The Americans with Disabilities Act (ADA) and ADA Amendments Act (ADAAA) prohibits workplace discrimination against otherwise qualified employees or applicants with a disability. Employment actions cannot be based on the condition, the individual's association with someone with a disability, or because the employer sees the person as disabled, even if he actually isn't. It applies to the same list of employers as Title VII. This Act is intended to remove the barriers preventing qualified people with disabilities from being employed, receiving transportation, communicating, and cultural opportunities available to those without disabilities. The ADA provides a definition of disability as a physical or mental impairment that substantially limits one or more of your major life activities. There must be a record of such impairment, or the perception must exist that the person has such an impairment.
  8. The 19th Century Civil Rights Act (amended in 1993) prohibits workplace discrimination by ensuring all people equal rights under the law and outlining the damages available.
  9. The Genetic Information Non-Discrimination Act (GINA) prevents employers, employment agencies, and labor unions from discriminating because of genetic information that may become known. It also stops insurers from charging more expensive premiums based on such information or from using it in underwriting.

Sexual Orientation Discrimination

Sexual orientation discrimination is not specifically prohibited, though some states and cities have passed their own laws related to homosexual, bisexual, and transsexual people. There is a body of case law related to interpreting existing sex discrimination laws.

What Happens when an Employee Files a Discrimination Charge with the EEOC?

Before an employee can file a discrimination complaint against an employer under Title VII, he/she must file a charge with the EEOC. If they find the claim has merit, it may sue on the employee's behalf. The EEOC may also decide not to represent the employee. In that case, the agency issues a "right-to-sue" letter. Then the employee can file a complaint and begin the litigation process.

Discrimination vs. Harassment

Harassment is a kind of discrimination that includes unwelcome behavior by a co-worker, manager, client, or anyone else in the workplace, based on race, color, religion, sex (including pregnancy), nationality, age (40 or older), disability, or genetic information.

Examples of Employment Discrimination

Employment discrimination can happen in any number of situations, including:

  • Giving preference to applicants of a certain national origin or gender
  • Refusal to hire applicants who observe certain religious practices
  • Denying compensation or benefits to pregnant employees
  • Demoting, disciplining, firing, or refusing to promote people over a certain age
  • Paying similarly qualified men and women different rates of pay for equal work
  • Allowing harassment of employees by co-workers for a particular religious belief
  • Repeatedly passing up an employee for promotion because of his/her race while promoting those less qualified

Different Types of Employment Discrimination

  • Age discrimination is when an adverse action is taken against someone because of their age. In employment, apprenticeships, or internships, it is illegal with a few very rare exceptions. Employers cannot state age preferences when advertising available positions, and employees cannot be offered different benefits packages based on age. The only exception to this rule is when it costs the same to give enhanced benefits to younger workers as it does for lesser benefits for older workers.
  • Employers cannot treat employees differently based on an individual's religion, beliefs, customs, or practices. They must make reasonable accommodations for employees to practice their faith unless it presents an undue hardship. They must also protect workers from harassment based on religion or the lack thereof.
  • Males and females doing jobs that are similar in skill, qualification, responsibility, and position, must be paid the same. Employers may not lower the pay of one group to equalize the pay.
  • Sex discrimination cases may be brought under the two different theories, disparate treatment, and disparate impact. A disparate treatment case involves a policy that treats similarly situated employees differently, based on gender or sexual orientation. In a disparate impact case, an individual must show that the organization's policy has a disproportionate adverse impact on people of one's own gender or sexual orientation.
  • Pregnancy discrimination happens when an adverse action is taken against a woman because she is or might become pregnant. Employers must treat pregnancy like any other temporary condition or illness.
  • A hostile work environment develops when harassment or discrimination keeps an employee or a group of employees from doing the work effectively.

Unlawful Discrimination and Harassment

Discriminatory practices can happen in any part of employment. It is illegal for an employer to make assumptions based on race, gender, or stereotypes. They cannot assume that an employee can't do a particular job may because of a disability. Additionally, companies can't refuse to hire someone because he/she has a relationship with someone of a particular race, religion, or ethnicity. Unlawful discrimination also includes harassment based on protected characteristics like race, gender, age, and religion. Under the laws of the United States, companies may not treat employees unfairly based on these things, and they cannot retaliate against someone who has filed a complaint or participated in an investigation of discrimination.

Employees who believe they have been the victim of workplace discrimination can file a complaint with the EEOC (The Equal Employment Opportunity Commission).

There are many situations where employment discrimination is legal.

  • Bankruptcy: The Bankruptcy Code says: "No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt." However, courts rulings have set a precedent that this does not apply to when the individual is applying for a job. The Third, Fifth, and Eleventh Circuit Courts of Appeal have handed down decisions that upheld denials of employment because of a bankruptcy.
  • Political Views: Some states have laws protecting people from employment discrimination based on political affiliation, but in most situations, you can be fired by a private employer if you exercise your right to free speech in a way that is harmful to the business. Only government employees cannot be terminated for this reason.
  • Favoritism: Favoritism at work is only illegal when you are discriminated against because of some protected characteristic like race, age, sex, religion, national origin, disability, pregnancy, color, or genetic information.
  • Nepotism: Hiring family members is not illegal if you're in the private sector, but if you work for the government, every state has laws relating to conflicts of interest that might come into play here.
  • Appearance: Only a few states and cities have laws to protect against discrimination based on appearance, and there are no federal laws against it. However, if a woman is held to different standards than a man or vice versa, that might rise to the level of illegal discrimination.
  • Credit History: In most states, an employer can refuse to hire you due to bad credit. Some states do have laws against this but not all. If a potential employer runs a credit check, they have to follow the rules of the Fair Credit Reporting Act. The EEOC looks carefully at this because it often has a disparate impact on women and minorities.
  • Weight: Weight discrimination is usually legal. A few states and municipalities have limitations the use of this information in employment decisions. One exception might be for the morbidly obese. If that's the case, you may be protected under disability discrimination laws since you may need medical treatment related to your weight. Missed days of work may be covered under the Family and Medical Leave Act. Also, if a female is held to different standards than men in the workplace, it might be sex discrimination.
  • Unemployment: In most areas, discrimination against the unemployed is legal. It is widespread, and a few states have passed laws against it. Others have tried to put such laws on the book but have failed. The American Jobs Act includes a law that prohibits discrimination against the unemployed, but it has not yet passed. Discrimination based on employment status disproportionately affects older workers and minorities, so this might be the basis for a discrimination claim.

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