Discrimination in the Workplace Happens — Here's How to Spot It

Workplace discrimination can be difficult to spot, but it’s not impossible when you know the signs.

Employment discrimination laws prohibit discrimination against certain classes of individuals. The workers protected by these laws are known as a “protected class,” and these protected classes are defined by specific statutes. If you believe your employer is engaged in unlawful discriminatory practices, you should be on the lookout for the following conduct, as it could be a sign of a much larger problem.

What are some examples of discrimination and how do you spot them? Read on to find out.

Laws concerning workplace discrimination

In addition to city and state anti-discrimination laws, there are federal protections available. Federal employment discrimination laws include:

• Title VII of the Civil Rights Act of 1964 (Title VII) (which includes the Pregnancy Discrimination Act)

• the Americans with Disabilities Act (ADA)

• the Genetic Information Nondiscrimination Act (GINA)

• the Age Discrimination in Employment Act (ADEA)

• the Equal Pay Act of 1963 (EPA) 

• certain sections of the Rehabilitation Act of 1973

Title VII, for example, prohibits discrimination based on sex, which includes discrimination based on gender and pregnancy, and prohibits sexual harassment. Notably, though sexual orientation is not currently written into the statute; the EEOC treats sexual orientation as a protected class under Title VII. Title VII also provides protections based on an employee’s national origin, race/color and religion.

This means that employers cannot make employment decisions based on these factors, including decisions related to hiring, firing, promotions, work assignments, discipline or any other terms and conditions of employment.

It is important to remember that employment discrimination matters are highly fact-specific and federal anti-discrimination laws apply only to employers with 15 employees or more — except for the ADEA, which requires a minimum of 20 employees. Many states offer protection to employees who work for an employer with fewer employees, though the remedies and elements required to prove a claim may vary.

7 signs your employer is engaging in workplace discrimination

Now that you have a sense of the type of conduct that is prohibited by law, how do you know if your employer is engaging in discriminatory practices? What are some examples of discrimination in the workplace? There are several signs to spot.

1. Questionable hiring practices 

In general, employers are prohibited from asking interview questions that target an applicant’s protected class. For example, an employer cannot ask female candidates about their marital status, whether they intend to become pregnant or any other questions related to their families or family planning.

Other examples of prohibited questions can include:

• Do you have children?
• How many kids do you have?
• Are you pregnant or do you plan to become pregnant?
• Who watches your children while you’re at work?

While there are times a friendly conversation can turn to the topic of children, the prudent employer will generally not raise the topic during an interview.

If somehow the topic of children and family planning does arise, the employer is not permitted to use that information in assessing the candidate’s fitness for the job.

Another example of an unlawful hiring practice would be if an employer refused to hire an applicant because of a foreign accent or religious attire.

"English-only" rules can also be a sign of unlawful discrimination. According to the EEOC, “An employer can only require an employee to speak fluent English if fluency in English is necessary to perform the job effectively” or “is needed to ensure the safe or efficient operation of the employer’s business and is put in place for nondiscriminatory reasons.”

2. Language that reveals an unlawful bias

Another way to spot workplace discrimination is by listening for language that reveals an employer’s unlawful bias. This includes comments that stereotype certain protected classes and attack their fitness as workers based on their protected attributes.

The following are examples of an employer’s language revealing unlawful bias:

• Comments such as, “Women don’t work as hard after they become mothers.”
• Comments that all members of a certain race are lazy or not hard-working
• Remarks expressing distrust for members of a certain religious group
• Speech that maligns the disabled and their abilities to perform their jobs
• Remarks such as, “Older workers are bad for business.”

Such language can reveal an employer’s unlawful bias and can be a clear sign of workplace discrimination if the employer is relying on those biases to make employment decisions.

3. Unfair promotions or assignment of work

If less-qualified male employees are consistently promoted over objectively more-qualified female candidates, the employer could be engaging in an unlawful practice discriminating against women based on sex.

Similarly, if male employees are consistently given “better” work assignments and are afforded more opportunities for growth and advancement than female workers, this too could be a sign of unlawful employment discrimination under Title VII. 

4. Unequal pay

The Equal Pay Act requires that men and women in the same workplace be given equal pay for equal work. Title VII, the ADEA and the ADA also prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age or disability, but do not have the “substantially equal” requirement.

As such, situations in which men and women are not provided equal pay can be a sign of workplace discrimination. This applies to the other protected classes, as well. For example, if older workers are consistently paid less than their similarly-situated younger colleagues, or where African-American employees aren’t compensated as well as their Caucasian counterparts, this can constitute unlawful discrimination.

Of course, while there are several factors to consider in assessing whether a pay disparity constitutes employment discrimination, it is a sign to watch for when you suspect workplace discrimination.

5. Assumptions regarding an employee’s plans or abilities 

Assumptions regarding an employee’s plans or abilities can be another sign of workplace discrimination. Some examples of these assumptions include an employer:

• Assuming a pregnant worker will not return to work after maternity leave
• Assuming a pregnant worker will not be interested in taking on new projects during her pregnancy, or assuming she will be unable to perform her current job duties (These decisions are for the pregnant worker and her physician—not her employer.)
• Assuming an older worker is automatically going to retire at a certain age

Not only can these assumptions be unlawful, but they can also reveal employer’s unlawful bias. As such, they are important to watch for if you believe your workplace is discriminatory.

6. Disparate application of discipline or policies

If an employer routinely disciplines female workers for conduct it permits male employees to engage in, this could be a sign of sex-based discrimination.

Similarly, if an employer enforces its attendance policy against employees of a certain protected class, and regularly permits employees outside the protected class to violate it, this too can be an example of workplace discrimination.

7. Retaliation

Retaliation for engaging in protected activity is prohibited by law. Protected activity is the activity an employee engages in when they exercise their rights under Title VII or one of the other workplace discrimination statutes.

Protected activity can take several forms, including (but not limited to):

• Filing a discrimination charge or lawsuit
• Serving as a witness in someone else’s employment discrimination charge or lawsuit
• Participating in an agency or employer investigation of discrimination or harassment
• Complaining directly to an employer about unlawful harassment
• Requesting a reasonable accommodation for a disability
• Requesting information on an employer’s anti-discrimination policies
• Resisting sexual harassment

While employers are permitted to discipline or terminate employees for non-discriminatory reasons, even when they have engaged in protected activity, employers are prohibited from targeting employees because of their protected activity. They also can't engage in any conduct intended to dissuade an employee or employees from engaging in future protected activity.

Where an employer does engage in such conduct, this can be a clear sign of workplace discrimination.

Some examples of unlawful retaliation for opposing discrimination include:

• Terminating an employee
• Subjecting them to increased scrutiny
• Formally disciplining the employee or issuing a negative performance evaluation
• Giving the employee less desirable job duties or transferring them to a less desirable position
• Threatening or harassing the employee

What are the types of discrimination the EEOC prohibits?

The EEOC prohibits discrimination against the following classifications:

• Age
• Disability
• Equal Pay/Compensation
• Genetic Information
• Harassment
• National Origin
• Pregnancy
• Race/Color
• Religion
• Retaliation
• Sex
• Sexual Harassment

How do you prove discrimination in the workplace?

Whether it's racial discrimination, gender discrimination, sex discrimination, age discrimination, religious discrimination or any form of discrimination, unfair treatment is illegal. And, while spotting workplace discrimination can be difficult, knowing these signs can help. If you believe you are the victim of employment discrimination, you should document any examples you notice and contact an employment rights attorney who can help you navigate the world of employment discrimination law.

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Candace is a practicing attorney, working parents advocate, freelance writer and proud mom. Her legal practice focuses on workers’ rights. She can be found writing about law, motherhood, and more on her blog as The Mom at Law.