Protecting Yourself (or Your Employees) from Workplace Discrimination

Your Rights When You’re Treated Unfairly on the Job

Though there are state and federal laws banning discrimination in the workplace, it remains a persistent problem, affecting the lives of countless Americans every day. There are, however, mechanisms in place to allow protected individuals to seek compensation and other remedies for disparate treatment on the job.

What Is Workplace Discrimination?

Title VII of the Civil Rights Act of 1964 makes it unlawful to discriminate on the basis of sex, race, color, religion, or national origin when hiring, terminating, or promoting employees, and in all other facets of employment. In 2020, the U.S. Supreme Court ruled that Title VII also protects employees from discrimination based on sexual orientation or gender identity. Other laws protect employees from discrimination based on age, disability, pregnancy, and genetic information.

Workplace discrimination is not usually expressed through slurs or physical threats; it often manifests in more subtle ways, such as the pay or benefits given to workers, the assignments they receive, and how their performance is judged and rewarded.

Discrimination can also happen during the hiring process. For example, a 2003 study found that employers were more likely to consider white candidates with criminal records than black candidates with no such history.

Federal Anti-Discrimination Laws

Under the current legislative scheme, discrimination is governed at the federal level by a broad range of anti-discrimination laws, including:

• Title VII of the Civil Rights Act of 1964, banning employment discrimination based on sex, race, color, religion, gender identity, sexual orientation, and national origin
• The Americans with Disabilities Act (ADA)
• The Age Discrimination in Employment Act (ADEA)
• The Equal Pay Act of 1963
• The Family and Medical Leave Act (FMLA)
• The Pregnancy Discrimination Act of 1978
• The Genetic Information Nondiscrimination Act

Examples of Employment Discrimination

The law recognizes two types of discrimination: disparate treatment (intentional discrimination) and disparate impact.

In a disparate treatment situation, the employer treats two or more employees differently based on their religion, sex, race, sexual orientation, or some other classification protected by Title VII. The employer intentionally enacts or imposes distinctly different policies, actions, or behaviors toward employees, based on a classification. Examples include:

• Paying men a higher wage than women in the same position with the same experience and performance evaluations
• Allowing persons of one religion to display symbols at work but denying those of another religion the same right

With disparate impact, the employer generally issues a single policy that applies to all employees, but which has a different effect on those within a particular classification. Examples include:

• Imposing a new requirement that all employees must work on Saturday, adversely affecting those who observe religious beliefs that prevent them from working on Saturday
• Hiring only employees of a certain height or taller, which courts have found disproportionately affects minorities and females

Protecting Yourself Against Discrimination and Filing a Claim with the EEOC

If you’re the victim of workplace discrimination, here are some important initial things to keep in mind:

• Check for a state or local Fair Employment Practices Agency (FEPA) where you might also file a complaint.
• See if you can file a complaint directly with your employer. Some companies have an anti-discrimination policy in place that includes an internal grievance procedure.
• Keep a record of the details of the discrimination, including dates and details that will aid investigators.
• Don’t be afraid to file a discrimination claim or cooperate with investigators. Your employer is legally prohibited from retaliating against you after you file a claim.

As soon as possible after you experience discrimination, you must file a complaint with the Equal Employment Opportunity Commission (EEOC) by filling out a questionnaire designed to elicit necessary information relating to the claim. You must file your complaint within 180 days of the incident; however, filing as soon as possible is recommended in order to fully protect your legal rights. (If the discrimination you experience is also prohibited under state or local law, your filing deadline is extended by 300 days, and the deadline is shorter [45 days] for federal employees and job applicants.) For further details on how to file a charge of discrimination, visit the EEOC website.

The EEOC will review your complaint, encourage you to mediate the dispute, and if mediation is unsuccessful, investigate your allegations. EEOC investigators may visit your workplace, conduct interviews, review documents, and seek further details of the incident. If the EEOC finds that discrimination occured, it will impose sanctions, which can mean that you will be hired, promoted, or reinstated to a position you lost, or that you will receive back pay or compensation for legal fees.

If the EEOC determines that insufficient evidence of discrimination exists, you will receive a “right to sue” letter giving you 90 days to bring a lawsuit against your employer in court.

Discrimination vs. Harassment

Under the law, discrimination is a broad concept, covering any adverse employment consequences suffered by persons in a protected class. Harassment is a form of discrimination. Harassment is typically characterized by repeated personal mistreatment (name-calling, physical assault) of a particular individual based on race, sex, disability, or other protected status. Isolated incidents of derogatory comments or joke-telling do not rise to the level of harassment.

Two important caveats to the law of harassment should be noted. First, the offender does not have to be directly employed by the employer (e.g., they could be an independent contractor). Second, the employee complaining of the harassment need not be the target of the jokes or derogatory comments. It is enough that the employee hears remarks directed toward another person and that the remarks interfere with the employee’s own work.

Steps Employers Can Take to Prevent Workplace Discrimination

Defending against claims of workplace discrimination can be costly and time-consuming for a business. There are measures any company can employ to minimize the risk of employment discrimination:

• Put written policies in place—Develop a clear approach to guide your employees, identifying what constitutes discrimination and how employees should respond.
• Conduct regular training in the workplace—Set up procedures so that all employees have periodic education in recognizing and effectively responding to workplace discrimination. Provide a copy of all written policies to every worker.
• Establish and effectively operate a resolution process—Make certain every employee knows how allegations of discrimination will be resolved. Ensure that you follow the procedures you put in place, so workers can confidently engage.
• Offer alternative communication channels—Often, the person to whom a person would report discrimination is involved in or perpetrating the discrimination. Give your employees a safe alternative way to report inappropriate behavior.
• Focus on eliminating bias in hiring—By reducing bias in hiring, you’ll increase diversity in your workforce, minimizing the risk of further discrimination.
• Be adamant about prohibiting any type of retaliatory conduct—If workers find themselves punished on the job for reporting discrimination, they’ll lose confidence in your ability to prevent discrimination.

Summary

In the United States, there are extensive state and federal laws banning discrimination in the workplace. Those laws prohibit discrimination resulting from disparate treatment, as well as acts that have a disparate impact on employees in a protected class, such as race, age, sex, disability, color, sexual orientation, gender identity, or religion. An employee who believes they have been discriminated against must file their initial complaint with the Equal Employment Opportunity Commission.