Those who experience discrimination or harassment in the workplace are often traumatized by the experience. Victimization and threats to job security cause uncertainty and an increasing feeling of helplessness.
Unfortunately, it’s something that happens with alarming regularity in today’s workforce. 91% of American workers say they’ve experienced workplace discrimination in some form, and 77% of them say they’ve witnessed it happening to others.
To help protect yourself and your coworkers, it’s important to understand the different types of discrimination in the workplace, the laws that apply to it, and how to recognize, handle, and prevent it from happening.
Understanding Workplace Discrimination
While not all unfair actions by employers are illegal or considered discrimination, any adverse employer actions that are influenced by a protected status are not allowed.
According to the Equal Employment Opportunity Commission (EEOC), to discriminate against someone means, “…to treat that person differently, or less favorably for some reason.” Those reasons can include a long list of characteristics, but some of the most common ones in the workplace are due to age, disability, race, color, nationality, sex, and religion.
Age Discrimination in the Workplace
Per federal law, employers are prohibited from treating an employee less favorably because of age, specifically those who are 40 or older. This discrimination can occur even if the victim and employer are both over 40. Some states also have laws that protect other age groups from discrimination. Washington D.C., for example, has a law protecting individuals from age discrimination if they are at least 18 years old.
Disability Discrimination in the Workplace
Disability discrimination usually occurs when an employer either refuses reasonable accommodations for a disability or engages in disparate treatment of employees based on a disability. An employer cannot take (or fail to take) an employment action because of the employee’s disability, record of disability, or perception that the employee is disabled.
Disabilities can include a physical or mental condition that substantially limits a major life activity (e.g., walking, talking, seeing, hearing, learning, or operating bodily functions). The condition doesn’t need to be long-term, permanent, or severe to be substantially limiting.
A qualified employee is not only entitled to a workplace accommodation for their disability, but employers in federal, private, state, and local government sectors must provide them (and job applicants) with reasonable accommodations for that disability unless doing so would cause undue hardship on the employer due to the difficulty or expense involved. Accommodations can include:
- Making the workplace more physically accessible or safe
- Providing additional training or amenities
- Allowing leave for disability-related treatments or symptoms
- Reassignment to a vacant position when reasonable accommodations aren’t possible in the current one due to job requirements.
Racial and Color Discrimination in the Workplace
Racial discrimination involves disparate treatment of an employee or applicant because of their race or a characteristic of race, like hair texture or bodily features. Color discrimination involves the disparate treatment of an individual because of their skin complexion. Discrimination can occur when there is evidence of disparate treatment based on the race or skin color of the employee’s spouse, other family members, or associates.
Employers are prohibited from harassing an employee because of race or color, including racial slurs, offensive remarks about a person’s race or color, or the display of racially offensive material at work. If the conduct is so frequent or severe that it creates a hostile or offensive work environment, then it is considered harassment. It is also considered harassment if it results in a negative employment decision, such as being fired, reprimanded, or demoted.
National Origin Discrimination in the Workplace
National origin discrimination occurs when an employee is treated differently because of their ethnicity, accent, or appearance, or they’re from a particular country or part of the world.
Sex-Based Discrimination in the Workplace
The law prohibits discrimination against an individual because of their sex, regardless of whether the person is a man or a woman. Sex-based discrimination involves the unfavorable treatment of an individual due to their sexual orientation, identity, or pregnancy.
The law also protects against sexual harassment in the workplace, such as unwanted sexual attention or inappropriate sexual advances or behaviors. Harassment can include requests for sexual favors, sexual innuendos, offensive remarks about a person’s sex or sexual orientation, negative employment decisions based on the person’s sex (e.g., demotion or termination), and persistent behavior severe enough to create a hostile work environment.
Hostile Work Environment
Unwelcome conduct based on a person’s identity within a protected class is prohibited. Harassment becomes unlawful when this offensive conduct becomes a condition of continued employment or is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive. Anti-discrimination laws also prohibit harassment for alleging acts of discrimination.
The offender can be a supervisor, coworker, or non-employee, and the victim doesn’t have to be the person harassed but can be anyone impacted by the offensive conduct. Moreover, harassment doesn’t have to involve physical touching.
Religious Discrimination in the Workplace
Employers may not harass, or discriminate against, employees because of their religious beliefs. The law protects those who belong to traditional organized religions and those with sincerely held religious, ethical, and moral beliefs.
It also requires employers to reasonably accommodate an employee’s religious belief or practice unless doing so would cause the business a substantial burden. Accommodations can include:
- Flexible scheduling
- Shift substitutions
- Job reassignments
- Modifications to workplace policies (e.g., grooming and clothing policies)
Missouri’s Department of Labor further specifies that employer discrimination is prohibited during all aspects of the employee experience, including:
- Hiring and firing
- Compensation, assignment, or classification of employees
- Transfer, promotion, layoff, or recall
- Job advertisements
- Use of company facilities
- Training and apprenticeship programs
- Fringe benefits
- Pay, retirement plans, or disability leave
- Other terms and conditions of employment
Laws Dealing with Workplace Discrimination
|Title VII of the Civil Rights Act of 1964
|Prohibits employment discrimination based on race, color, religion, sex, or national origin, and established the EEOC.
|Americans with Disabilities Act (ADA)
|Prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all places that are open to the general public. It’s also illegal for employers to harass an employee based on their disability.
|Rehabilitation Act (RA)
|Similar to the ADA, but applies specifically to federal employees.
|Age Discrimination in Employment Act (ADEA)
|Prohibits employment discrimination against individuals 40 years of age and older, including hiring, firing, pay decisions, job assignments, promotions, layoffs, training, benefits, or any other term or condition of employment.
|Genetic Information Nondiscrimination Act (GINA)
|Prohibit discrimination based on genetic information with respect to health insurance and employment. Health insurance providers can’t deny coverage or charge higher premiums due to someone’s genetic information, and employers can’t use someone’s genetic information to make job-related decisions, such as hiring, firing, or job assignments.
|Pregnancy Discrimination Act (PDA)
|Prohibits discrimination against women in the workplace due to pregnancy, childbirth, or related medical conditions.
|Revised Missouri Statutes Chapter 213 (Missouri Human Rights Act)
|Prohibits discrimination based on race, color, religion, national origin, ancestry, sex, disability, and age in employment, housing, and public accommodations.
Most of the above laws not only make discrimination illegal, they also make it illegal for an employer to discourage an employee from asserting or exercising their rights under the laws or retaliating against an employee for reporting instances of discrimination. The ability to report and assist government agencies investigate discrimination in the workplace is a protected right and can’t be interfered with via intimidation or threats, including:
- Poor job performance evaluations
- Position transfers to a less desirable position
- Verbal abuse
- Physical abuse
- Threats of any kind (i.e. calling immigration, etc.)
- Increased job difficulty
- Spreading rumors
- Changing work schedule
Recognizing Workplace Discrimination
Knowing the different types of discrimination and the laws that apply to them is a good start, but being able to recognize discrimination in the real world is an equally important skill.
Examples of Discrimination in the Workplace
|Type of Discrimination
How to Handle Workplace Discrimination
Unlawful discrimination in the workplace should never be tolerated or excused. Employees who experience it firsthand or witness it happening to someone else should report the discrimination to the EEOC and Missouri Human Rights Commission (MHRC) immediately.
Employers are liable for harassment their supervisors committed and failure to prevent and correct harassing behavior. If the harassment caused a hostile work environment, an employer can avoid liability if it reasonably tried to prevent and correct the harassing behavior, and the employee unreasonably failed to take advantage of those preventive or corrective opportunities.
Employers are also liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors) if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action.
Reports or claims of discrimination need to be filed within 180 days of the event for private employers or 45 days for federal employers. In rare circumstances, the private employer window can be extended to 300 days. The EEOC and MHRC provide multiple options for someone who needs to file a workplace discrimination claim.
Complaints can be made for any of the following employer actions based on discrimination:
- Other Disciplinary Action
- Reduced Benefits
- Non-Promotion or Non-Selection for a Position
- Failure to Accommodate for a Medical Condition or Religious Belief
- Unfair Job Assignments
- Failure to Provide Equal Training
- Sexual Harassment and Failure to Protect Against Predatory Behavior
- Harassment, Retaliation, or Reprisal
- Unequal Performance Standards
Having documents to support claims of discrimination can be useful. These can include written accounts where discrimination occurred, documents or correspondence that demonstrate or lend context to the discrimination, and written recaps or messages of conversations related to the discrimination.
Recourse for Victims
After a workplace discrimination claim is filed, both agencies will inform the employer and ask them to resolve the situation with the employee through a mediator. If no resolution can be reached, the employer will submit a Respondent’s Position Statement and a formal investigation will be opened. If discrimination is found, the employer will be given the option to reach a settlement with the victim and/or employee. If no settlement is reached, the EEOC will decide to file a lawsuit against the employer, while the MHRC will conduct a hearing that ends with a recommended filing and order. The commission will then issue its final decision and order. Either party can appeal this decision to the circuit court.
Federal remedies include compensatory and limited punitive damages (based on the size of the employer), while state remedies include reinstatement or promotion, back pay, and damages for pain, suffering, humiliation, and deprivation of civil rights.
In both processes, complainants may request a Notice of Right to Sue after their charge has been on file for 180 calendar days. This notice allows the complainant to pursue a lawsuit in state or federal court on their own instead of doing so with either agency. Both agencies, however, will close their investigations if a complainant chooses to exercise this option, and the complainant will then have 90 days to file their suit(s). In Missouri, any suit must also be filed within 2 years of when the discrimination occurred.
When choosing to pursue a discrimination lawsuit, an experienced workplace discrimination lawyer will help sort through the issues and determine if legal action is appropriate. Again, federal and state laws have strict timelines on how long you can file a charge or suit, so it’s best to avoid waiting to act or reach out to a sexual harassment lawyer.
Paladin Law can evaluate your case to determine if you have a legitimate discrimination claim, how to best pursue and protect your rights, and identify the best course of action to achieve the most favorable result.