What is Discrimination?

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Discrimination in the workplace refers to when an individual or group of individuals are treated less favorably than others solely because of their race, sex, pregnancy or marital status, age, disability, religion, sexual preference, trade union activity, or other class or characteristic protected under federal or state legislation. It is illegal for employers to discriminate against individuals from protected classes in the workplace if they are current or prospective employees, such as job candidates.

Laws Covering Discrimination

There are a number of important federal laws that cover discrimination of protected individuals. Some states have additional bases on which discrimination is prohibited. Federal laws governing discrimination in the workplace for private employers in 2012 included:

The Equal Employment Opportunity Commission (EEOC) is the federal agency that is responsible for enforcing these laws and handling discrimination claims. It frequently provides guidance and information about recent cases and claims to help employers enforce these laws in the workplace.

Discriminatory Employment Practices

Under these laws, it is illegal for employers to discriminate against individuals in protected classes for employment decisions related to hiring and firing; compensation; assignment or classification of employees; transfer and promotion; layoff or recall; job advertisements; recruitment; testing; use of company facilities; training programs; fringe benefits; retirement plans; disability leave; and other conditions, terms or benefits of employment.

This means that employers cannot make employment decisions based on any factor protected under law. For example, employment discrimination could occur if an employer pays equally-qualified employees different salaries based on their sex or race, excludes potential employees from the hiring process based on their religious affiliation or race, lays off an employee based on them being in a protected class, denies a promotion to an otherwise qualified employee who can perform the essential functions of the job because he or she has a disability; or states preferred characteristics which are protected under law in a job ad.

Additionally, individuals covered under this legislation are protected from four types of discriminatory practices including:

  • harassment on the basis of their protected class;
  • retaliation from their employer based on filing a charge of discrimination, participating in an investigation or opposing discriminatory practices;
  • employment decisions based on stereotypes, assumptions, or myths about the abilities, traits or performance of individuals within a certain class;
  • denying employment opportunities to a person because of marriage to or association with an individual of a particular class

Disparate Impact and Treatment

Discrimination can be manifested in either disparate treatment or disparate (otherwise known as "adverse") impact. Both types of discrimination against protected classes are prohibited under federal law.

It is unlawful for employers to use practices that have disparate impact on a protected class unless the characteristic can be deemed a “bona fide occupational qualification.” In cases of disparate impact, employers do not intentionally and explicitly have policies or practices in place that exclude or discriminate against individuals in protected classes. Policies or practices that seem neutral, however, can adversely impact a protected class. A common example of disparate impact is testing all job applicants on a particular skill or ability and disproportionately eliminating African Americans based on the results, even though this practice is not intentional.

Disparate treatment is also illegal, but differs from disparate impact in that it is intentional discrimination. With disparate treatment, an employer intentionally treats individuals of a protected class differently than other employees or job applicants to control an outcome.

Your Responsibilities As An Employer

Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Employers must also keep certain records, regardless of if a charge has been filed with them, including certain workforce data in the annual EEO-1 report. In addition to these obligations employers should:

  • Develop and implement a clear policy prohibiting discrimination in the workplace and retaliation against an employee making a discrimination complaint
  • Train supervisors and managers on employment discrimination
  • Refrain from asking about protected characteristics in the hiring process
  • Regularly evaluate hiring and selection practices for adverse impact
  • Conduct compensation audits to assess pay equity
  • Document objective, performance, and job-related reasons for all employment decisions

For more information about workplace discrimination, ERC members can access our HRresources or contact ERC's HR Help Desk at hrhelp@yourerc.com. Not a member? Join today and access tons of HR resources, posters, forms, information, guidance, and legal trends and updates to help keep you compliant.

 

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. The data used in this article reflects the current laws in 2012.

Additional Links & Resources

Prohibited Employment Policies/Practices (Source: EEOC)

Federal Laws Prohibiting Job Discrimination Questions & Answers (Source: EEOC)

Guide for Employers: The Charge Handling Process (Source: EEOC)

Discrimination in the Workplace (Source: HR Hero)

15 Ways to Reduce Hiring & Termination Liability

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Issues involving hiring and termination liability are two of employers’ most common questions and concerns. Here are 15 ways that you and your managers can reduce liability when hiring and terminating employees. 

  1. Conduct a thorough and documented job analysis to determine the essential functions of each position in your organization and provide a foundation for selection and hiring practices. This analysis yields information about which duties are essential and also identifies the knowledge, skills, and abilities required. Documentation of the essential functions for each position is necessary to comply with the American Disabilities Act (ADA).
  2. Identify the actual qualification requirements needed for the position. Studies show that employers tend to overestimate degree and experience requirements, in particular, which may not truly be necessary for the position and could screen out potential candidates. This can lead to discriminatory practices.
  3. Ensure that you know the types of disabilities covered under the ADA. These have expanded over time and include a range of conditions that many employers often do not consider (i.e. depression, allergies, obesity, etc.). Current or prospective employees with the following disabilities may be covered by this law.
  4. Know your accommodation options. The Job Accommodation Network provides a great deal of information to employers on the types of possible accommodations that are appropriate to provide for certain disabilities. The sample accommodations cited on this website are useful and practical for many organizations to employ in order to make reasonable accommodations for employees with disabilities.
  5. Make sure that employment applications do not request certain demographic information including graduation dates (or other information that would yield data about the candidate’s age), questions about physical appearance and characteristics (such as height and weight), credit history, sex, gender, religion, national origin, marital/family status, schedules, and disabilities.
  6. Create a selection plan for each job you plan to hire for using the same selection procedures or consistently apply the same selection practices for all positions if standardized practices are necessary (i.e. if you use a background check for one applicant, use it for all applicants). All job applicants for a position need to be evaluated using the same criteria.
  7. Design structured and objective tools or processes to score applicants on job-related criteria, such as rating scales or interview forms. These can help prevent personal and non-job-related information from being used in the selection process.
  8. Pre-determine hiring questions so that hiring managers do not ask or consider inappropriate personal information. Training hiring managers in interviewing is also beneficial so that they are aware of appropriate and inappropriate questions and interview protocol.
  9. Avoid using non-job-related criteria to make selection decisions. Specifically, avoid using unemployment status or age (young or old) as factors when hiring employees. The EEOC is currently exploring these discriminatory practices in greater depth.
  10. Evaluate employment tests for validity, job-relatedness, and adverse impact. Selection tests need to be evaluated in terms of whether they are causing adverse impact for protected groups.  In addition, usage of certain cut scores can also cause liabilities, if it results in adverse impact. Selection tests also need to be validated and directly related to the job. The Uniform Guidelines on Employee Selection Procedures is a helpful set of guidelines on the use of testing in the workplace.
  11. Do not use genetic information for hiring purposes. GINA (Genetic Information Nondiscrimination Act) prohibits the use of genetic information, such as family medical history, for hiring. 
  12. Protect against negligent hiring. Employers should consider using screening practices such as background and reference checks and credential verifications (such as education, licenses, past work, etc.). Credit checks and motor vehicle reports may also be necessary for some jobs.
  13. Monitor pay practices, per the Equal Pay Act, which prohibits unequal pay for equal work. Per the law, all employees should be paid equal pay for equal work on jobs which require substantially equal skill, effort, and responsibility and is performed under similar working conditions. Pay comparisons and statistical tests should be conducted for employees completing equal work to ensure fair and equal pay practices.
  14. Document performance and non-compliance with policies. All incidents of performance (including conversations about the performance incidents, non-compliance with policies, corrective action taken, etc.) need to be documented in the event that your organization needs to terminate an employee. It helps to have an established performance management system to support supervisors and managers in documenting employees’ behaviors. Should your organization need to terminate an individual, it will need to have verifiable facts to back up its decision.
  15. Keep processes transparent. By providing job applicants or employees with fact-based reasons for your hiring and termination decisions, they are less likely to believe that other personal factors played a role in the decision (such as their race or gender). Oral or written feedback is advised.

We often find that liability problems emerge when employment decisions are not based on job-related and objective criteria, when practices lack consistency and equity, and when documentation is not being used. It’s important for HR and managers alike to be educated about how to prevent these liabilities.

Should your organization need more information or education on this topic, consider accessing our resources, training programs, and services below.

Additional Resources

Job Descriptions & Selection Assessments
For more information about how ERC can help your organization with job description projects or selection assessments, please contact consulting@yourerc.com.

HR Help Desk
For more information and guidance pertaining to any of the content in this article, please contact hrhelp@yourerc.com.