Laura Berlinsky-Schine
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The U.S. Equal Employment Opportunity Commission (EEOC) reported 67,448 charges of workplace discrimination in the 2020 Fiscal Year. This number is alarming on its own, but it’s also important to remember that many cases of discrimination also go unreported. Well over half of these cases (55.8%) were those involving retaliation — punishing those employees for reporting discrimination or harassment — and disability came in second in terms of the highest percentage of all cases filed at 36.1%. Discrimination is unlawful, but it’s still all too common, especially in the workplace.

What is workplace discrimination?

There are several federal laws in place that define workplace discrimination. Those laws include the Civil Rights Act of 1964 (including Title VII), The Pregnancy Discrimination Act (PDA) of 1978 and the Americans with Disabilities Act (ADA) of 1990, prohibiting and protecting workers against discrimination on the basis of factors like:

• Age

• Color

• Ethnicity

• Gender

• Genetic information

• National origin

• Pregnancy

• Race

• Religion

• Sex

• Sexual orientation

• Skin color

Individual states define additional protected classes, such as citizenship.

Employment discrimination involves an employee or job candidate being treated unfairly because of their membership in one of the above protected classes. It includes a wide variety of negative behaviors that adversely affect people in the workplace, like taking these characteristics into account when making employment decisions, including hiring, firing and promoting individuals. It can also involve distributing different benefits to employees based on these factors, as well as compensating employees of equivalent positions or levels differently, along with other actions and behaviors.

Discrimination can also take the form of retaliation if someone files a complaint and is then targeted for their actions. In addition, employees may face discrimination based on their relationship with a member of a protected class. 

Federal complaints regarding discrimination in the workplace are handled by the EEOC. 

Let’s take a closer look at what discrimination against different protected classes involves and how you can spot it in the workplace, whether it’s happening to you or someone else.

9 examples of workplace discrimination 

The below categories are some of the most common types of discrimination in the workplace. Bear in mind that there are other types of discrimination that may occur.

1. Discrimination based on age

The Age Discrimination in Employment Act (ADEA) protects workers age 40 or older, prohibiting discrimination on the basis of their age. Federally, people under 40 are not defined as a protected class, and ADEA does not apply to these cases. However, if an employee is treated unfairly because of their age (over 40), they are a victim of age discrimination. There are some exceptions when there is a risk of public safety.

Discriminatory behaviors and actions may include (but are not limited to):

• Refusing to hire older workers because of their age

• Demoting, reassigning, firing or laying off older workers because of their age

• Denying certain benefits to older workers that younger employees receive

• Denying other opportunities, liking company-sponsored training or education programs, to older workers

Example: Mary, a 60-year-old sales manager, has a consistent record of exemplary performance at Company X. All of a sudden, she receives a negative performance review from a new supervisor without real evidence or cause. Her supervisor uses this as a factor to justify demoting her to a junior-level position. 

2. Discrimination based on gender or sex

There are several laws in place prohibiting discrimination based on gender or sex, such as Title VII of the Civil Rights Act and the Equal Pay Act of 1963. (It’s important to note the distinction between gender and sex: sex refers to the specific biological features an individual has at birth, while gender is a social construct and indicates how an individual expresses themselves.) When candidates or employees are treated differently based on either category, they are the victims of discrimination.

Discriminatory behaviors and actions may include (but are not limited to):

• Indicating a preference for a member of a particular gender in a job listing

• Paying a female employee less than a male employee with comparable levels of experience and qualifications

• Expressing the fear that a female candidate will become pregnant and using that as a reason not to hire her

• Promoting a man over a woman who has more experience

• Sexual harassment

Example: A hiring manager asks pointed questions about a female job candidate’s relationship status and plans to have children. The same hiring manager does not ask these questions of male candidates for the same position.

3. Discrimination based on race, ethnicity or skin color

Discrimination based on race, ethnicity or skin color are considered separate categories, but they are all illegal. As with other categories of discrimination, this involves targeting or treating an employee or candidates unfavorably because they are members of a certain group or have certain characteristics.

Discriminatory behaviors and actions may include (but are not limited to):

• Harassment against individuals because of their race, ethnicity or skin color (including slurs, derogatory remarks and more)

• Instituting policies that alienate members of particular racial or ethnic groups (whether they do so intentionally or unintentionally)

• Taking race, ethnicity or skin color into account when making employment decisions or making overgeneralizations about behaviors and characteristics of members of different groups

• Making assumptions about race or ethnicity based on names or other markers (name discrimination)

Example: A manager tells an African-American employee that her afro is distracting to other employees and tells her she must style her hair differently. 

4. Discrimination based on religion

Religion is another protected class under federal law. Employers may not discriminate against an individual on the basis of their religion or religious beliefs. They must also make reasonable accommodations for employees to candidates to practice their religion, as long as it does not interfere with their ability to perform their job requirements successfully. 

Discriminatory behaviors and actions may include (but are not limited to):

• Forcing an employee to work on a religious holiday they observe

• Failing to make accommodations for employees’ religious beliefs or observances

• Negatively modifying a person’s job, such as prohibiting someone wearing certain religious attire from interacting with customers

• Making negative comments or assumptions about a person because of their religion

Example: A Muslim woman wears a hijab to work, and her employer tells her this violates the company’s dress code because “hats are not allowed.” (This is an example of a business failing to make accommodations for someone’s religious beliefs; even if the company’s dress code prohibits hats or head coverings, this employee must be exempt because wearing a hijab is part of her religion.)

5. Discrimination based on national origin

The country from which individuals come can be the basis of discriminatory behavior, too. Perceived national origin, which may not always be consistent with the person’s actual origin, can as well. Either way, if this employee or candidate is treated worse than others because of their perceived or actual national origin, then this is unlawful, as is the same treatment of those who are married to or affiliated with someone of a certain national origin.

Discriminatory behaviors and actions may include (but are not limited to):

• Giving an employee of a certain national origin the unsavory tasks, despite the fact that these responsibilities are not in their job description

• Making fun of someone’s accent or refusing to hire them because of their accent

• Employment decisions are made based on someone’s citizenship or immigration status (the is illegal as per the Immigration Reform and Control Act of 1986, so long as they are able to furnish documentation attestation to their employment eligibility)

Example: A bilingual employee is prohibited from speaking Spanish on the job, despite the fact that speaking only English is not necessary for performing their duties satisfactorily. (Employers may only make this a rule if it is necessary for safety or efficient organizational operations.)

6. Discrimination based on mental or physical disability

People with disabilities are protected by the ADA. Under the Act, candidates or employees may not be treated differently or denied opportunities because of mental or physical disabilities, unless these disabilities would interfere with their job responsibilities and requirements. This also applies to people or are married to or caregivers for people with disabilities. Additionally, an employer is required to provide reasonable accommodations to people with disabilities.

Discriminatory behaviors and actions may include (but are not limited to):

• Refusing to hire someone with a disability that would not prevent them from performing their job responsibilities

• Refusing to hire someone whose partner has a disability

• Making employment decisions because of an employee’s mental or cognitive disorder or disability

• Asking questions related to a person’s disabilities in a job interview

• Refusing to allow an employee with a chronic pain condition to work from home on occasion, despite their ability to successfully complete their job from home

• Harassment against individuals with disabilities

Example: In an interview, an employer asks a candidate who is not making eye contact if they have autism and tells the individual that their behavior is “off-putting.”

7. Discrimination based on genetic information

Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits discrimination based on genetic information, which typically involves data about genetic tests and makeup, as well as family medical history. Generally, this type of information is used to evaluate the risk of someone getting a disease, illness or disorder in the future based on their family history. 

Discriminatory behaviors and actions may include (but are not limited to):

• Requesting or purchasing genetic information from employees

• Making employment decisions based on an individual’s disclosure of aspects of their family medical history

• Restricting benefits because of an employee’s genetic information

Example: In a job interview for a healthcare position, the subject of dementia comes up. The interviewer asks the candidate if there is a history of dementia in their family.

8. Discrimination based on pregnancy or parenthood

Pregnancy is a condition protected by the PDA, as well as the ADA. Additionally, pregnancy discrimination encompasses discrimination on the basis of childbirth and other pregnancy-related conditions. 

Discriminatory behaviors and actions may include (but are not limited to):

• Denying reasonable accommodations to pregnant employees

• Making employment decisions based on pregnancy

• Asking questions related to pregnancy in an interview

• Forcing a pregnant employee to take leave when they are able to perform their job responsibilities

Example: An employee reassigns a pregnant employee to a lower-level role for the duration of her pregnancy, despite their ability to continue to perform their responsibilities because they don’t believe the employee will be able to handle the higher-level role.

9. Discrimination based on sexual orientation

In 2020, the U.S. Supreme Court ruled that any employer that fires an individual for being transgender or gay is in violation of Title VII of the Civil Rights Act. Before last year, however, LGBTQ employees were not federally protected, and only a handful of states had laws in place protecting them. 

Discriminatory behaviors and actions may include (but are not limited to):

• Abusing or harassing LGBTQ individuals

• Making employment decisions on the basis of someone’s sexual or gender orientation

• Asking employees to reveal their sexual orientation

Example: A male hiring manager expresses discomfort with hiring a male candidate he believes is gay based on physical attributes because he fears that the candidate will make sexual advances toward him, despite having no reason to believe that would be the case.

This article is to be used for informational purposes only and is not intended to offer legal advice. If you do need legal advice, you should consult an employment attorney.

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