Preventing Workplace Discrimination

Most Americans in the workforce spend at least forty hours a week in their workplace.  According to a recent study by the National Sleep Foundation, the average American works forty-six hours a week.  Thirty-eight percent of study participants reported that they worked more than fifty hours per week.  With so many hours spent in the workplace, it is imperative that employees feel comfortable in their work environments. 

Unfortunately, all too often the workplace environment becomes hostile.  Not only can these workplace crises cause fear and anxiety in employees, but the hostility may also hinder employees in performing their jobs to the best of their abilities. 

InjuryBoard has developed this article to provide you with important information and tips that will assist you in identifying any employment discrimination you may encounter, or avoiding the pitfalls of workplace discrimination entirely. 

What is Workplace Discrimination

The definition of workplace discrimination encompasses any discriminatory employment practices, whether they relate to the hiring, job evaluations, training, disciplinary action, promotion, job assignment, termination, compensation, or treatment of an employee. 

It should be noted, however, that unfair treatment of an employee by an employer does not necessarily result in discrimination.  For example, an employer may have the right to treat an employee differently than other employees based on poor job performance.  For an employee to have a viable claim that his employer violated Equal Employment Opportunity (EEO) laws, the different treatment of the employee must be based on a protected characteristic. 

Forms of Workplace Discrimination

Race or Color – Generally, people are categorized by race based on physical descriptions and common heritage.  Important factors are self-identification with a specific race, skin color, facial features, and hair texture.

Gender or Sex – A person’s gender is his or her self-conception as being male or female.  Conversely, an individual’s sex refers to his or her biological and reproductive maleness or femaleness.  Both gender and sex are protected categories.

Ethnicity – Scholars usually associate a person’s ethnicity with a people’s common ancestry.  Individuals of the same ethnicity often have similar language, culture, religion, behavioral, and biological characteristics.

Religion – People of the same religion generally share the same beliefs codified by prayer, religious law, writings, ideas, and rituals. 

Age – The term “ageism” was coined to refer to discrimination based on a person’s advanced age.   

Pregnancy or Marital Status – Laws frequently prohibit bias originating based on a woman’s pregnancy.  Similarly, employers may not base their behavior on whether or not an employee is married or divorced.

Disability – A person is deemed to have a disability when her level of functioning falls substantially below that of an ordinary person.  Classifications of disability include cognitive impairment, mental impairment, intellectual impairment, sensory impairment, physical impairment, and chronic disease.  This category includes medical conditions such as HIV and AIDS.

Sexual Orientation and Gender Identity – Sexual orientation consists of a person’s sexuality according to which gender the person finds sexually attractive.  Meanwhile, gender identity refers to the gender with which the person self-identifies.  Gender identity may also refer to social gender role, or the gender others attribute to the person based on how he represents himself to the public (hair style, behavior, clothing, etc.).

Veteran Status – A person’s affiliation or lack of affiliation with the military should have no bearing on the manner by which an employer treats her.

Political Affiliation – The political beliefs and the political party to which a person belongs is a protected characteristic.

Citizenship – Employers are not permitted to consider an employee’s citizenship in the United States or another country (or lack thereof) in behaving a certain way toward that employee.

Language Abilities – Employers may not discriminate based on language abilities. The EEOC may consider a workplace “English language only” policy to be a violation of Title VII of the Civil Rights Act of 1964.

For more information on Title VII and the Civil Rights Act of 1964, please read the article entitled “Protections That Guard Against Workplace Discrimination.” 

Socioeconomic Status, Size and Weight, and Regional Origin – Many jurisdictions also prohibit employer bias based on these characteristics.  This means that employers may not treat employees differently based on their financial situations, height or weight (if irrelevant to the job), or homes. 

CLICK HERE - for a comprehensive definition of employment discrimination

CLICK HERE - for FAQs about employment litigation from the U.S. Department of Justice

Key Strategy – In order for an employee to have a valid complaint against an employer for workplace discrimination, the alleged different treatment of an employee (whether favorable or unfavorable) must originate with a protected category. 

Sexual Harassment

Each year, the Equal Employment Opportunity Commission (EEOC) receives about 15,000 sexual harassment allegations.  A recent telephone poll confirmed that the problem of sexual harassment in the workplace is pervasive.  In the poll, thirty-one percent of women reported that they had been sexually harassed while at work.

This type of sexual harassment encompasses unwanted sexual advances, requests for sexual favors, and similar physical or verbal conduct when these actions impliedly or explicitly affect a person’s employment, interfere with an individual’s job performance, or render the work environment hostile, intimidating, or offensive.  It is illegal to create a hostile work environment according to Federal discrimination laws. 

Anyone can perpetrate sexual harassment in the workplace, man or woman, superior or subordinate, employee or non-employee.  The first step in reacting to sexual harassment is to inform the perpetrator that his or her advances are unwelcome.  Next, you should file a complaint with a company grievance system.  If these actions are unsuccessful, you may file a complaint with the EEOC. 

CLICK HERE - to learn more about support for victims of sexual harassment

Unintentional Discriminatino

Often termed “statistical discrimination,” unintentional discrimination occurs when an employer’s neutral selection process yields groups with a substantial disparity between them.  Prime examples of practices that frequently result in unintentional discrimination are standardized tests which often disadvantage minority applicants and height requirements in the hiring process, which likely create hardships for women and some ethnic groups.  It is important to note that if the disparities are job-related and important (i.e., a business necessity), the disparate treatment is acceptable.  For example, a fire department may have a physical fitness or weight requirement.  These requirements would likely be deemed acceptable even though they exclude some otherwise qualified applicants because fire fighters must be physically fit to properly perform their duties. 

In some cases laws forbid statistical discrimination in addition to intentional discrimination, but provide different standards for deciding discrimination in each type of case.   Substantially different outcomes for different groups are not themselves illegal, if the processes by which they came are legal.

KEY STRATEGY – If the use of a procedure results in substantially different outcomes between employees, an unintentional discrimination situation may exist. 

Read the next article in the series: How to Avoid Workplace Discrimination

Contact an attorney in your area.