What Is Workplace Discrimination?
Employees have a right to be free of employment discrimination, meaning unequal treatment or harassment that takes place in the workplace as a part of the employment relationship. The cornerstone of discrimination in the workplace is the concept that if an employee is in a protected class, then an employer may not alter the terms and conditions of employment based on the fact that the person is in a protected class. These protections exist under federal law and typically under state law as well.
Protected classes under Title VII of the Civil Rights Act of 1964 include sex, religion, race, color, and national origin. It is illegal under this title for an employer to discriminate against an employee or prospective employee based upon these protected classes. For example, refusing to hire those of a certain religion is not permitted. Recent court cases, however, have been brought regarding the "reasonable accommodation" expected for religious beliefs. For example, in the 2014 Burwell vs. Hobby Lobby case, the court ruled that companies can have their own religious beliefs and potentially hire and terminate employees based on those beliefs.Age is a protected class covered under the federal Age Discrimination in Employment Act (ADEA).
Protected Classes Under Federal Employment Discrimination Law
Disparate Treatment and Disparate Impact
Discriminatory treatment exists primarily in two forms: disparate treatment and disparate impact.
Disparate treatment happens when an employer treats an employee differently based on that employee belonging to a protected class. Disparate treatment is intentional. The example of Bob's employer reducing his pay because of his advanced age is an instance of disparate treatment.
Disparate impact, on the other hand, is when an employer's policies and procedures appear neutral but have an unintended consequence of treating an employee in a protected class differently from others. Disparate impact is unintentional. An example would be a policy requiring all employees to perform a task in a given amount of time. It may be that an older employee requires additional time because of their age. While neutral on its face, the policy had the unintended consequence of discriminating against older employees.
Because disparate impact discrimination often happens without an employer's direct knowledge, it is important for business leaders to be aware of the potential for it.
It is also important to have an open line of communication between employees and the employer. This allows employees to report when they believe they are being treated unfairly. The company can then investigate to determine if any disparate impact discrimination has occurred.
Disparate Treatment versus Disparate Impact
|Disparate Treatment||Disparate Impact|
|What Is It?||When an employer treats an employee differently based on a protected class||When an employer's policies and procedures appear neutral but have an unintended consequence of treating an employee in a protected class differently from others|
|What Is the Motive?||Intentional||Unintentional|
|What Is an Example?||Jenna's employer cuts her pay because she belongs to a certain religion.||Jenna's employer sets a new policy docking the pay of all employees who refuse to work on Saturdays. Jenna's religion forbids her from working on Saturdays. While neutral on its face, the policy had the unintended consequence of discriminating against employees who belong to a certain religion.|
Depending on the action, it can be difficult to determine if an action is discriminatory. One test is whether a member of a protected class is treated the same or differently from another, similarly situated employee. If so, then a court could make a finding of discrimination.
Sexual harassment is use of abusive language, bullying, coercion, or discrimination related to sexual advances or sexual discussion. In these cases, the plaintiff must prove evidence of discrimination. Then the burden shifts to the employer to show a legitimate nondiscriminatory reason for the action. The plaintiff will prevail if the plaintiff can show the defendant's reason is just a pretext. It can be in the form of quid pro quo harassment, in which an employee is told they must do something or a negative employment outcome will result. It can also be in the form of a hostile work environment, where sexual advances or discussion make working conditions intolerable for employees.
Forms of Sexual Harassment
|Quid Pro Quo Harassment||Hostile Work Environment|
|What Is It?||When an employee is told to do something in exchange for something else||The creation of an intolerable workplace because of sexual advances or discussion|
|What Is an Example?||Marta tells an employee, "Go on a date with me, or I'll fire you."||Sheila faces so many sexual advances and comments that it is impossible for her to come to work anymore.|