We advise on discrimination people face at work, whether due to sex, sexual orientation, age, disability, pregnancy, race or other protected characteristics. Many people are reluctant to believe that they are targets of intentional discrimination, but it remains surprisingly widespread. We work hard and creatively to seek the best outcome, whether through negotiation, in court, or a combination.
Table of Contents
- What is Workplace Discrimination?
- What are some examples of Employment Discrimination?
- Workplace Harassment
- The consequences of Employment Discrimination
- Discrimination in the American workplace
- Racial Discrimination
- Sex Discrimination
- Gender Identity Discrimination
- Age Discrimination
- Family Responsibility Discrimination
- Disability Discrimination
- Religious Discrimination
- Pregnancy Discrimination
- Genetic Information Discrimination
- National Origin Discrimination
- The Civil Rights Act of 1964 – Title VII
- The Equal Pay Act of 1963
- U.S. Equal Employment Opportunity Commission (EEOC)
- The Equality Act 2010 – England & Wales
- What to do if you experience Workplace Discrimination, Retaliation or Harassment?
- In Summary
What is Workplace Discrimination?
Discrimination in the workplace affects many people every day.
It is against the law for someone to discriminate against you because you belong to a protected group, including race, religion, sex, sexual orientation, pregnancy, age and disability. There are numerous laws that make it illegal to discriminate on any of these bases when hiring, firing, or determining terms or conditions at work.
Discrimination refers to unjust treatment that denies a person opportunities extended to others based on prejudice about a person’s identity or background. For example, you may be experiencing discrimination if you are denied a job interview for which other similarly qualified candidates are interviewed, are fired from your job, receive less pay than others doing the same work, or receive fewer benefits based on prejudice about your group.
What are some examples of Employment Discrimination?
Discrimination in the workplace may include offensive jokes or slurs, derogatory comments, selection for undesirable assignments, denial of training or opportunities for advancement, and unfair disciplinary action. For instance, your boss might refuse to promote you based on your age even though other employees who performed similarly well were promoted. Discrimination on the basis of national origin may include treating employees differently because they speak with an accent or grew up in a particular part of the world.
Employment discrimination can be overt or subtle. For example, you might experience overt discrimination if your boss refuses to hire you specifically because of your race. You might face subtle forms of discrimination if supervisors at work exclude you from important offsite meetings or social functions.
Federal law prohibits employers from retaliating against an employee who has filed a complaint of discrimination or participated in another person’s discrimination claim. It also protects employees who oppose what they believe to be unlawful employment practices such as sexual harassment, unequal pay for men and women in similar positions, or denial of benefits based on family responsibilities. For example, if you complain about your manager’s sexist remarks or treatment of other female workers, he might retaliate by giving you fewer opportunities to advance. If you complain to HR about this behavior, it is illegal for your employer to punish you by demoting you, laying you off, suspending you without pay, firing you, or giving you a negative performance review.
Workplace harassment is a form of discrimination. It is illegal for an employer to create or let employees create a hostile work environment through, among other things, inappropriate jokes, offensive images, or derogatory remarks.
Sexual harassment, for example, is a common office problem and perhaps the most widely known form of harassment. This is when your employer or a coworker makes unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that creates an intimidating, hostile, or offensive work environment. Employers must take every complaint seriously and investigate promptly.
Harassment against any protected class is illegal. This can include making derogatory comments about the person’s identity, excluding them from important meetings or opportunities, and other forms of dismissive or denigrating treatment.
Employees can also be protected from harassment by fellow employees and third parties such as vendors, clients, consultants, and even agency staff that may be visiting the office on a daily basis.
Employers have a duty to protect you against all forms of discrimination and harassment at work regardless of where the behavior originates. This includes protecting you from outside sources, such as customers and visitors of the business.
The consequences of Employment Discrimination
A discriminatory (or retaliatory or harassing) work environment can contribute to serious psychological and emotional stress, lower self-esteem, and physical illness. You may also suffer damage to your professional reputation.
In addition to feeling hurt and angry, you may face financial consequences if the discrimination affects your work. In many cases, you could lose out on a promotion or salary increase because of unfair treatment in the workplace. If you quit your job without securing another one, you may not only suffer lost wages but also be unable to pay for basic needs.
Discrimination in the American workplace
The classes that are protected by US federal law and the laws of many states include:
- Disability status
- Familial status
- Genetic information
- National origin
- Sexual orientation and gender identity
- Veteran status
The laws protecting these classes are set out in more detail below. Other groups may be protected by additional state legislation.
Race discrimination is illegal; however, it still occurs in America today. Such discrimination may include refusing to hire, promote, or fairly pay someone because they are Black, Hispanic/Latino, Asian, Native American, or a Pacific Islander. For example, an African American worker might be unfairly overlooked for a promotion because of his skin color. A Latino customer service representative might not receive proper training due to her accent. A Korean American manager may not get promoted because he appears different from upper management.
Employers may not treat men and women differently simply because they are of a particular sex. Sex discrimination can happen when employers hire, promote, or pay one gender more than the other. For example, if an employer promotes less qualified men over more qualified females, it will be committing sex discrimination under Title VII of the Civil Rights Act of 1964.
Gender Identity Discrimination
Gender identity is another component that may come into play when discussing workplace discrimination.
It is illegal for an employer to discriminate against an employee based on their internal and individual experience of gender, which may or may not correspond with the sex they were assigned at birth. Discriminating against expressions of gender, such as an employee’s chosen form of dress and speech, is also illegal under US law.
The Age Discrimination in Employment Act protects workers over the age of 40 from discrimination in hiring, firing, and benefits. For example, an employer may refuse to hire someone because they feel that person is too old for the position. This is illegal under federal law.
The Age Discrimination in Employment Act also protects workers seeking benefits packages from employers. An employer may not deny a worker access to sick or leave benefits simply because of their age. They must provide these benefits to all eligible employees based on the length of service with the company, regardless of how old they are.
Family Responsibility Discrimination
United States law prohibits discrimination against employees because of their family responsibilities. If an employee has children, parents, or a spouse whom they have primary responsibility to care for, this does not give an employer permission to treat them differently at work or pay them less than coworkers performing a similar role.
The Family and Medical Leave Act of 1993 (FMLA) provides employees with up to 12 weeks of unpaid leave per year for certain medical and family reasons such as the birth of a child, adoption, or caring for an ill relative. However, there are stipulations for this law as well. Employees must work for a company with over 50 employees within a 75 mile radius, and they must have worked at the company for 12 months or more. It is an unpaid leave, but workers do qualify for benefits during their time off and are guaranteed to return to the same job or one of equal rank afterward if they choose.
Under the Family Responsibilities Discrimination (FRD) Act, it is illegal to discriminate against employees because they have family responsibilities. This means that employers may not refuse to hire or promote people if they have other responsibilities at home, such as taking care of children or sick relatives.
Employers must ensure that disabled workers have access to reasonable accommodations that allow them to perform their jobs adequately. This might include ergonomic office seating or finding appropriate computers to help people with visual impairments. The Americans with Disabilities Act prohibits employers from discriminating against people with disabilities in any aspect of their employment. It also requires reasonable accommodations to be made for disabled employees so they may perform the essential functions of their jobs.
Employers cannot discriminate against or harass an employee because of their own or someone else’s religious beliefs. An employer may not fire you, demote you, give you negative performance reviews, or take away benefits because they disagree with your religious practices. For example, an employee may not be denied time off for religious holidays or be forced to participate in practices they find offensive.
It is illegal for an employer to ask a potential hire about their religious affiliations during the hiring process (there are some exceptions for jobs that directly impact national security).
Both job applicants and employees are protected by the Pregnancy Discrimination Act of 1978 (PDA) and the Civil Rights Act of 1964. Employers may not refuse to hire someone because they are pregnant, nor can they fire or lay off a worker once they become pregnant. They must also allow employees time for prenatal care and maternity leave after the birth of their child.
Genetic Information Discrimination
The Genetic Information Nondiscrimination Act (GINA) prohibits employers from discriminating based on genetic information with respect to hiring, firing, and benefits. If an employer has access to genetic information about a potential employee, they must keep it confidential.
Employees must abide by these laws when talking about other employees in the workplace as well. They are not allowed to discuss an employee’s genetic profile in a negative way that may undermine their career. Disparaging remarks that hurt someone’s reputation could be construed as illegal under federal law. For example, if someone recommends against hiring an applicant because they have cancer in their family medical history, that decision is considered discriminatory.
National Origin Discrimination
The Immigration Reform and Control Act of 1986 (IRCA) protects workers against unlawful discrimination based on their national origin. For instance, employers may discriminate against job applicants because they feel that a person’s accent is difficult to understand or feel their national origins do not mesh with the company’s overall culture.
The Civil Rights Act of 1964 – Title VII
The Civil Rights Act of 1964 was a landmark piece of legislation that changed America’s employment laws by introducing protected classes. Title VII prohibits employment discrimination based on race, color, religion, sex, and national origin. Following a U.S. Supreme Court ruling in June 2020, the Civil Rights Act of 1964 was amended to make provisions to protect LGBTQ employees from sexual discrimination in the workplace.
Read more about Title VII here.
The Equal Pay Act of 1963
This law made it a requirement that men and women be given equal pay for equal work.
U.S. Equal Employment Opportunity Commission (EEOC)
The U.S. Equal Employment Opportunity Commission (EEOC) is the federal agency that enforces laws against employment discrimination. You may need to file a complaint with the EEOC, or a state equivalent, before you are allowed to file your claims in court.
You may need to file a complaint with the EEOC within 180 or 300 days depending on the state you are in.
The Equality Act 2010 – England & Wales
You are protected under The Equality Act 2010 from being discriminated against on the grounds of a protected characteristic. This applies whether you are an employee, self-employed, working through an agency, a company director, a partner of a firm or on secondment.
The Equality Act includes nine protected characteristics:
- gender reassignment
- marriage and civil partnership
- pregnancy and maternity
- religion or belief
- sexual orientation
The Equality Act protects against direct discrimination, where a member of a protected class is treated less favourably than someone who is not a member of that class.
It also prohibits indirect discrimination. This is when a provision, criterion or practice (“PCP”) puts a person with a protected characteristic at a disadvantage compared with people without that protected characteristic and does so without justification.
It also protects against harassment, or conduct that has the purpose or effect of creating a hostile, degrading, humiliating environment because of your protected characteristic. It also prohibits quid pro quo sexual harassment whereby an employee is penalised for rejecting a sexual advance.
The Equality Act also prohibits employers from victimising (retaliating against) an employee who files a complaint, participates in a complaint, or opposes conduct prohibited by the Equality Act.
It is important to understand that the time limits for most claims in the Employment Tribunal are three months.
For most cases, you will need to file a notice with ACAS within three months of the discriminatory act to preserve your claim. ACAS will facilitate a conciliation process, and if that is unsuccessful in resolving your complaint, ACAS will grant you a certificate. You usually have one calendar month to file with the Tribunal from the date of the certificate.
What to do if you Experience Workplace Discrimination, Retaliation or Harassment?
It’s important to take action when you experience or witness discriminatory behavior. You should keep detailed records of every incident that occurs, who was involved, date, time, location, how it affected you, etc. These are important if you decide to file a claim. If you see someone else being mistreated by management or coworkers, you should document this as well.
You may wish to report discriminatory behavior to your employer, and your employer should have a policy setting out the procedure for doing so. You should also keep records of interactions with HR personnel, including dates and times of meetings, phone calls made and received, discussions on the issue at hand, and what actions were taken to resolve the issue.
You may wish to consider seeking the advice of an attorney before reporting discrimination, both to put together the strongest argument for your position, and also if you are concerned about retaliation.
You may wish to file a complaint with an administrative body (such as the EEOC in the US or ACAS in England), which you can do even if you have not yet complained to your employer. However, to successfully bring some claims, you may need to show that you reported the incident to your employer, or that the employer should have been aware of it.
A lawyer may be able to help you get the mistreatment stopped, get your job back or get compensation, either by negotiating with your employer or by bringing your claims in court.
Remedies may include training for the offender and managers of the company, disciplinary action against the offender, or termination of employment for repeat offenders. You could also receive compensation for any emotional distress or damages you have faced.
There are many forms of unlawful discrimination. Your employer should have a process allowing you to report discriminatory behavior. You may want to seek the advice of a lawyer before doing so. If an internal complaint fails to resolve the issue, you may want to consider filing an administrative complaint or lawsuit in the civil courts (or Employment Tribunal in England). Your chances of winning increase if you have evidence, including records of incidents and reports from witnesses. If you believe that your employer has violated anti-discrimination laws, contact us immediately to learn more about your rights and options for recourse against unlawful employment discrimination. We can help you determine the course of action that’s most beneficial for you.
Please get in touch with us via our contact form.
- Atkinson et al. v. Mount Sinai – Equity in healthcare
McAllister Olivarius proudly represents eight current and former employees of Mount Sinai Health System’s Arnhold Institute for Global Health in a federal complaint alleging sex, age and race discrimination.
- Warwick Joint Claims – the “rape chat”
Our clients were female undergraduate students at Warwick University targeted by a male “rape chat”. We brought a claim against the University on the grounds that its handling of their complaint was discriminatory on the basis of sex.
- Protections for LGBTQ Workers Won’t Work Unless Enforced (Newsweek)
Dr Ann Olivarius’ op-ed in Newsweek sets out the changes to the Civil Rights Act that would enable LGBTQ employees and other victims to better hold employers accountable for wrongdoing.