Discrimination in the workplace can show up in different ways, from gender-based harassment to exclusionary tactics based on age, religion or disability. Put simply: if someone is treated differently for reasons beyond their control and/or not related to work, that’s discrimination.
In the United States, laws related to workplace discrimination are detailed in the Civil Right Act of 1964 and other local and federal statutes. The Act outlines the specific categories and characteristics protected, including race, sex, pregnancy, religion, national origin, disability, age, military service or affiliation, citizenship status, genetic information and bankruptcy or bad debts.
Laws regarding discrimination in the workplace originate from the federal, state and local level, and influence policies on how claims will be processed and potentially prosecuted.
The most well-known and influential statute regarding discrimination in the workplace is the Civil Rights Act of 1964, specifically Title VII. The enactment of Title VII made it illegal for someone to discriminate against another person based on race, color, sex, religion or national origin. The law also made it illegal for someone to retaliate based on the filing of a discrimination claim.
The Pregnancy Discrimination Act is an amendment to Title VII that made it illegal to discriminate against a woman due to pregnancy, childbirth or a medical condition related to pregnancy or childbirth.
The Equal Pay Act (1963) made it illegal to pay men and women different wages for equal work in the same workplace. People over 40 earned protection from discrimination due to their age under the Age Discrimination in Employment Act (1967).
In 1990, Title I of the Americans with Disabilities Act established that discriminating against a qualified person with a disability in the private sector as well as in state and local governments is illegal.
In the 21st century, state governments like New York and California have passed laws against discriminating against Black employees or applicants who wear their natural hair in the workplace or in school.
Unfortunately, there still exists several areas that are not covered by federal legislation, including discrimination against LGBT employees and weight discrimination. Though no federal law exists regarding discrimination against LGBT employees, many states have passed laws to protect their interests.
Discrimination can look like a variety of actions and inactions, including bullying, excluding team members from meetings, scheduling conflicts, recruitment practices.
Direct discrimination is intention and directional, often typified by disparate and unfair treatment like being passed over for promotions or opportunities or the creation and implementation of policies that exclude specific groups of people.
Indirect discrimination is caused by unintentional actions. This can look like using hiring software that filters out applicants based on the inclusion or lack of certain information could be discriminatory for certain races/ethnicities or the disabled.
Discrimination can affect different categories of people, some in ways that intersect such as being a gay person of color or disabled veteran. Below are the types of discrimination that can occur in the workplace and what it can look like.
Age discrimination involves treating a team member or potential employee either more or less favorably based on their numerical age. This can look like not promoting a woman in her 40s due to believing she is not invested in her career like a man of the same age or favoring employees in their 20s due to the ability to pay lower salaries.
According to the EEOC, the Age Discrimination in Employment Act “forbids age discrimination against people who are age 40 or older.” Although it is not illegal according to federal law to discriminate against younger employees, some states have addressed this by enacting laws at the state level.
Finally, it is against the law to systemically harass a person due to their age, especially if the targeting creates a hostile work environment.
Racial discrimination involves treating a team member or potential employee less favorably due to the color of their skin and/or personal characteristics associated with race such as hair, facial features, or skin color. This can look like declining to hire a person of color due to their race or systemically excluding Latino workers from front of house hospitality roles.
Intraracial discrimination (discrimination between people of the same race) is also an issue, as well as discrimination due to a person being married to or partnered with a person of a racial minority group.
Religious discrimination involves treating a team member or potential employee either more or less favorably due to their religious beliefs. This can look like punishing Jewish employees who observe religious holidays or banning head coverings which negatively impacts Muslim or Sikh team members.
Disability discrimination involves treating a team member or potential employee less favorably due to their history of disability (mental or physical illness) or current or believed status of mental and physical impairment. This can look like not hiring a person who has previously sought mental health treatment or firing an employee who becomes handicapped and needs reasonable accommodations.
Sex discrimination involves treating a team member or potential employee less favorably due to their sex. Discrimination due to gender identity, including transgender or non-binary status, is in violation of Title VII. Discrimination does not have to be personal but can be negative or offensive behavior toward men or women, and can happen between women and women, men and men, and women and men. This can look like not promoting women into leadership roles in a male-dominated industry or removing men from consideration for nursing positions.
Pregnancy discrimination involves treating a team member or potential employee less favorably due to pregnancy, childbirth or a medical condition related to pregnancy or childbirth, according to the EEOC. This can look like demoting an employee who announces their pregnancy.
Equal pay and compensation discrimination is related to the Equal Pay Act, which “requires that men and women in the workplace be given equal pay for equal work” according to the EEOC. Someone alleging equal pay or compensation discrimination may also have a claim under Title VII. This can look like systematically paying women less for equal work in any industry.
Language discrimination involves treating a team member or potential employee less favorably due to their native language or characteristics of their language skills. This can look like employers adopting English-only in the workplace, which discriminates against employees whose second language is English.
Recruitment discrimination involves employers discriminating against applicants due to their age, race, religion, color, national origin or disability. This can look like a company that only hires from specific universities, regions of a country or primarily recruits one gender for roles.
In order to avoid issues with federal regulators, maintain a safe and equitable environment and avoid discrimination in the workplace, leadership must maintain a culture where discrimination is not only discouraged but swiftly and fairly punished and eliminated.
Awareness of current local, state and federal laws is necessary to ensure discrimination is not unwittingly part of a company’s culture. As earlier outlined, indirect discrimination can negatively affect employees and potential team members, and ignorance of the law can contribute to indirect discrimination.
Additionally, companies must develop, distribute and maintain anti-discrimination policies that apply to employees across geographical, cultural and hierarchical boundaries. Clearly define what discrimination is, how it plays out in the workplace and establish a no-retaliation, no-exception stance on how the company investigates and processes discrimination claims.
Discrimination is not always obvious and intentional actions. Companies must also be informed about how discrimination can manifest and become systemic even with informed leadership, and work to consistently assess the individual and the collective.
Companies invest billions per year in training employees across a variety of skills and professional development, and anti-discrimination training should be on that list. By investing in online or in-person training, leaders can educate their teams on what is not acceptable in the workplace and also reduce the risk of allowing an environment that can lead to attrition and EEOC claims.
In the event of a discrimination claim, companies have an obligation to thoroughly investigate that situation to treat both the claimant and those accused fairly. This requires interviews, research and reviewing evidence related to the discrimination, and being transparent in the process of sharing findings. Should a claim of discrimination in the workplace be found true, companies that take appropriate action help potentially prevent discrimination in the future. When consequences are clear and present, people know their discrimination in the workplace will not be excused.
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