Discrimination in the workplace occurs when a member of a protected class, for instance, a woman or a representative of minorities, is treated unjustly or in prejudicial manner in comparison with his or her coworkers. Under the law, employers cannot discriminate in their employment practices like hiring, promoting, firing, or compensating on the basis of race, color, sex, pregnancy, disability, age, religion, national origin, and genetic information.
However, the laws against discrimination are not always enforceable. For instance, the anti-discrimination laws apply to private employers that have 15 or more employees. In relation to complaints involving age discrimination, the rules are enforceable if the employer has 20 or more employees. At the same time there are no minimum requirements on the quantity of employees to enforce the Equal Pay Act (EPA), which outlaws any practice of paying different salaries to women and men for performing “substantially equal work in the same workplace.”
- Race and Color Discrimination
Race discrimination in the workplace occurs when a person is treated in unjust or prejudicial manner because he or she is of a certain race. Color discrimination in the workplace is about treating somebody in unjust or prejudicial manner because of this person’s skin color.
Discrimination based on race and/or color may also involve situations when somebody is treated unjustly or unfavorably because his or her spouse or partner is of a certain race or color, or because someone’s association with a race-based organization or group.
- Sex Discrimination
Sex discrimination in the workplace is about treating a person in unjust or prejudicial manner because of his or her sex. Unequal treatment of women and men can also happen because of someone’s participation in the organization or group based on certain gender.
Title VII of the Civil Rights Act (Title VII) prohibits discrimination and harassment based on gender identity, including sexual orientation. It is not always the case that someone is discriminating against or harassing another person because he or she is of a different sex, sexual orientation, or gender identity. Both victim and the harasser can be of the same sex, sexual orientation, or gender identity. In other words being of the same sex, sexual orientation or gender identity is not a defense for a person who discriminates against or harasses another person.
But where is the line between joking or teasing and harassing in the workplace? – Unlike joking or teasing, harassment is so frequent and/or so severe that it causes a hostile work environment and often leads to adverse employment decisions like firing or demoting the victim of harassment.
- Pregnancy Discrimination
Pregnancy discrimination is about treating a woman in unjust or prejudicial manner on the basis of her pregnancy, childbirth, or medical condition associated with her pregnancy or childbirth. The Pregnancy Discrimination Act (PDA), which is an amendment to Title VII, prohibits any discrimination based on pregnancy when applying for a job, or in the workplace.
If a pregnant woman employee is unable to perform assigned duties because of her pregnancy or childbirth related health condition, her employer must treat her as it treats any other temporarily disabled employee. It may include providing lighter duties or unpaid pregnancy leave or maternity leave.
Under the Family and Medical Leave Act (FMLA), a new parent (including foster and adoptive) may have up to 12 weeks of unpaid leave to take care of the child.
- Disability Discrimination
Disability discrimination in the workplace involves treating in unjust or prejudicial manner an employee or applicant because this person’s disability. The Americans with Disabilities Act (ADA) prohibits discrimination against persons with disabilities. Under the law, employers must provide reasonable accommodation to employees or applicants with a disability, unless it would be significantly difficult or expensive for employers.
- Age Discrimination
Age discrimination in the workplace occurs when someone is treated in unjust or prejudicial manner because of his or her age. Such discrimination can happen during the process of applying for a job, considered for promotion or fired because of age. The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against anybody who is 40 years or older. It does not matter whether the person who discriminates is also age 40 or over.
- Religious Discrimination
Discrimination based on religious believes occurs when a person is treated in unjust or prejudicial manner because of this person’s association with a particular religion. The definition of “religion” in this context comprises not only traditional religions like Buddhism, Christianity, Islam, and Judaism, but also other less common religions.
It is against the law to harass anyone based on this person’s religious beliefs. Employers are supposed to accommodate employees’ religious practices, unless it would be unreasonably expensive, i.e. create an undue hardship to the business operation. Such accommodations may include, for instance, a flexible shift schedule adjusted for religious observances, wearing some elements of religious dress in the workplace etc.
- National Origin Discrimination
Discrimination based on national origin occurs when somebody is treated in unjust or prejudicial manner because this person is from a certain country or part of the world, because of his or her ethnicity or accent, or even because this person appears to be of a particular ethnic background (and in reality he or she is not). Such discrimination may include cases when the victim and harasser are of the same national or ethnic origin. In other words being of the same national or ethnic origin is not a defense for a harasser.
It is forbidden by law to harass anyone because of the person’s national origin, including offensive remarks about someone’s ethnicity or accent. Employers may not use hiring or other employment practices that are supposed to be applied to everyone regardless of the national origin, if those practices have a negative effect on people of a particular national origin and are not job-related.
For instance, employers can only expect their employees to be fluent in English if it’s necessary to perform their job duties. However, employers are not allowed to enforce an “English-only rule,” i.e. to require their employees to speak only English in the workplace, unless it is needed to ensure safety requirements or business operation. An employer is not allowed to make its employment decisions based on an employee’s foreign accent, unless his or her accent prevents the employee from effectively performing the job duties.
The Immigration Reform and Control Act (IRCA) makes it illegal to discriminate in hiring, promoting, or firing on the basis of a person’s citizenship or immigration status.
- Genetic Information Discrimination
Under Title II of the Genetic Information Act of 2008 (GNA), it is prohibited to discriminate against employees or applicants because of their genetic information. This law makes it illegal to use genetic information in making employment decisions, as well as request, or purchase genetic information (some exceptions may apply). It also strictly limits the disclosure of the genetic information.
The genetic information includes not only any information on an individual’s genetic tests, but also similar information of the person’s family members, as well as information on diseases or disorders in the family (family medical history).
- Equal pay
Under the Equal Pay Act (EPA), all women and men working in the same workplace and performing substantially equal job must be paid equally. This requirement relates to all form of payments including wage, overtime pay, bonuses, profit sharing, benefits, and reimbursement for travel expenses.
Title VII also prohibits discrimination in pay and benefits on the basis of sex (as well as on based on race, color, religion, and national origin). So if a person has a claim of equal pay violation based on gender under the EPA, he or she may also have a claim based on Title VII.
Unlike the EPA, other anti-discrimination laws enforcing equal pay, i.e. Title VII, the ADA, and the ADEA don’t require the performed job to be “substantially equal.”
- Reverse Discrimination
Under Title VII, employers cannot discriminate against their employees or applicants based on race, color, sex, religion, or national origin irrespective of who the victim of discrimination might be. Employers are not allowed to create programs and policies that would have a disparate impact, i.e. adverse effect on members of a protected class.
Reverse discrimination occurs when a person is treated in unjust or prejudicial manner because he or she belongs to a dominant or majority group. Like other types of discrimination, reverse discrimination is also based on protected factors, such as race or gender. While many diversity initiatives are aimed at creating an equal opportunity playing field in the workplace, they sometimes may break anti-discrimination laws and regulations.
It’s a good idea to keep a diary where you record the occurred incidents related to discrimination in the workplace: date, time, people involved and witnesses, as well as the details of the incident. These records can be very important if later you need to prove your case in court. You should also collect other evidence of what happened, i.e. emails, letters, pictures and any other evidence you might have.