It is an employer's responsibility to ensure their employees have a safe and inclusive workplace that is free from discrimination and harassment. As employers and employees navigate a combination of in-office and remote work, workplace discrimination may start to look a little different. Discriminatory practices don't have to occur in the office to be considered workplace discrimination. With this in mind, it is important to understand what workplace discrimination is, what discrimination laws apply to you and your team, and how to prevent this kind of behavior from occurring.
What is workplace discrimination?
Workplace discrimination occurs when a worker is treated unfavorably based on a protected characteristic. Although the range of protected characteristics can vary from state to state, federal anti-discrimination laws protect employee characteristics such as race, color, religion, national origin, sexual orientation, gender identity, disability, age and genetic information. All employees – even those under at-will employment – are afforded protection from discrimination based on these protected statuses.
It is important to understand exactly what constitutes unlawful discrimination, as it can occur throughout any aspect of the employment relationship (e.g., hiring, employment, termination).
"While we often think of discrimination in terms of 'big' or decisive events, such as termination of employment, failure to hire, or denial of a promotion, discrimination can also exist in day-to-day aspects of the employment relationship, such as denial of preferred shifts, disparate discipline, and/or rescission or denial of responsibilities," Andrea Milano, special counsel at Pillsbury Winthrop Shaw Pittman, told business.com.
Employer risks of workplace discrimination
If an employee experiences discrimination in the workplace, the employer may face a myriad of consequences based on the severity of the transgression and the governing state. For example, Thu Do, partner at Gilson Daub, said that harassment, discrimination, or retaliation in the workplace can cause physical and/or mental injuries to an employee, resulting in legal recourse against the employer.
"In many states, including California, workers compensation might be available to pay for those injuries, but it not always the only remedy for a victim of discrimination to get money," said Do. "Victims can also file a lawsuit in civil court for the harassment, discrimination and retaliation in addition to filing a workers' claim."
In addition to lawsuits, discrimination claims can cost your business in terms of money and reputation. What's more, if your business is liable for cultivating a work environment that normalizes and accepts workplace discrimination, you will likely face bigger problems than one discrimination lawsuit.
Milano said employer risks can include:
- Damages for lost wages and benefits
- Emotional distress damages
- Compensatory damages
- Interest fees
- Statutory fees and penalties
- Attorney fees
- Time and business interruptions
- Investigations by state or federal anti-discrimination agencies (including broad enforcement authority and affirmative, remedial action)
- Bad public relations
- Loss of standing within the community
- Loss of employee morale
Types of discrimination in the workplace
Regardless of whether it is significant misbehavior or a minor transgression, workplace discrimination is illegal and should be avoided at all costs. Because some instances of employment discrimination may be a bit unclear to employees, it is important you train them on what is and isn't acceptable behavior.
The five most common forms of discrimination are:
- Retaliation. An employer may not retaliate against an employee for lawfully reporting an illegal, illicit, unsafe, or fraudulent work practice – also referred to as whistleblowing. For example, the Occupational Safety and Health Administration (OSHA) grants employees the right to a safe and healthy work environment; if an employee lawfully reported unsafe or unhealthful conditions, the employer would not be able to take adverse action against the employee in retaliation. Marianne Curtis, an employment litigation attorney and partner at Berger Singerman, said retaliation typically occurs between a boss and a subordinate, although it can occur between two colleagues.
"The retaliation can be done in very subtle ways, such as isolation or providing unfavorable work," said Curtis."Alternatively, the retaliation can be more overt through termination with unstated or generic reasons as the basis for termination."
- Racial discrimination. It is illegal to discriminate against an employee due to their race. Although racial discrimination has been an issue in the workplace for a long time, recent social justice movements have magnified the impact of this type of discrimination in a very public way. "Employers must ensure that the work environment is not just 'not racist' but rather 'anti-racist,'" said Curtis. "In other words, employers must take affirmative steps to ensure that Black employees and employees of color are protected from subtle forms of discrimination."
- Disability discrimination. It is illegal to discriminate against an employee due to their disability status. For example, you may not exclude a job applicant from consideration for a job simply because of their disability, provided that they can perform the job's function with reasonable accommodations. Reasonable accommodations can include offering flexible work schedules, granting additional medical leave and making your office wheelchair accessible.
- Sex discrimination. It is illegal to discriminate against an employee due to their gender identity or sexual orientation. For example, an employer is not allowed to discriminate against an employee or applicant due to LGBTQ+ status. They are also not permitted to pay men and women different salaries based on their gender. "The most ubiquitous form of discrimination that women still face can be as simple as inappropriate comments from men that suggest women should not be in the workplace or inappropriate commentary on a woman's body – even if the man believes it to be a 'harmless' joke," said Curtis.
- Age discrimination (ageism). Employees may not be discriminated against for their age. Age discrimination is often experienced when employers do not want to hire older employees because of perceived limitations. Employers may not specify age preferences when recruiting new candidates, and they may not promote, terminate or compensate employees based on age either.
Employees and anti-discrimination laws
Several anti-discrimination laws govern how you can and cannot treat employees and co-workers. The following laws protect workers from the previously stated acts of discrimination. Keep in mind, each state or jurisdiction may also have its own laws and restrictions on what is deemed discriminatory practice.
American with Disabilities Act of 1990 (ADA)
The Americans with Disabilities Act prevents discrimination against individuals with disabilities in all areas of public life, including employment. Title I of the ADA deals with employment and ensures that people with disabilities are fully considered during the recruitment process and provided reasonable workplace accommodations if needed. This Act applies to employers with 15 or more employees.
Age Discrimination in Employment Act of 1967 (ADEA)
The Age Discrimination in Employment Act protects employees (and certain applicants) 40 years or older from age discrimination in the workplace. This Act applies to employers with 20 or more employees.
Title VII of the Civil Rights Act of 1964 (Title VII)
Title VII of the Civil Rights Act prohibits employers from discriminating against job applicants and employees based on race, color, religion, sex or national origin. It also prohibits employers from engaging in retaliation against applicants or employees who exercise their legal rights (e.g., whistleblowing). Title VII applies to federal and state governments, private employers with 15 or more employees, employment agencies, labor organizations and joint-labor management committees.
Pregnancy Discrimination Act of 1978 (PDA)
The Pregnancy Discrimination Act prohibits employers from discriminating against employees based on pregnancy, childbirth or pregnancy-related medical conditions (e.g., miscarriage). This Act applies to all employers covered under Title VII.
Equal Pay Act of 1963 (EPA)
The Equal Pay Act requires employers to maintain equality by paying men and women the same wages for performing the same jobs. The EPA is part of the Fair Labor Standards Act of 1938 (FLSA), which requires employers to comply with minimum wage, overtime pay, recordkeeping, and youth employment standards and requirements.
Family Medical Leave Act (FMLA)
The Family and Medical Leave Act requires employers to provide covered employees with job-protected and unpaid family leave for qualifying events. Qualifying events can include the birth or adoption of a child, having a serious health condition or needing to care for an immediate family member (e.g., spouse, child, or parent) who is suffering from a serious health condition. The FMLA applies to employers with 50 or more employees.
Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA)
Title II of the Genetic Information Nondiscrimination Act prevents employers from discriminating against an employee due to their genetic information. This Act applies to federal and state governments, private employers with 15 or more employees, private and public employment agencies, labor organizations and joint-labor management committees.
Immigration Reform and Control Act of 1986 (IRCA)
The Immigration Reform and Control Act prevents employers from discriminating against applicants and employees based on their citizenship or national origin. It also prohibits employers from knowingly hiring or recruiting workers who are unauthorized to work in the United States.
Preventing discrimination in the workplace
The best way to prevent discrimination in the workplace is by implementing proper policies and education training. Every small business owner should establish written anti-discrimination protocols and provide their employees with the corresponding training.
"There must be a uniform system in place to address complaints or reports of discrimination," said Do. "This uniform system should apply to all individuals in a business regardless of the position."
Creating a safe and inclusive workplace starts from the top down; business leaders must set an example for their organization that discrimination will not be tolerated. You want to foster an open culture that encourages employees to report any issues they encounter and address any concerns employees raise in a timely and professional manner. When employees know that you are taking this matter seriously, they are more likely to comply.
"Anti-discrimination laws provide the floor of what conduct is legally unacceptable, but everyone within your company should be striving to maintain a respectful workplace where everyone is treated with dignity and respect at all times and on all bases," said Milano.