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 firstname.lastname@example.org. 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)