Jump to a section:

1. OVERVIEW

2. TYPES OF DISCRIMINATION

3. LAWS AND LEGAL TALK

4. EXAMPLES

5. RESPONDING TO COMPLAINTS

6. TIPS FOR PREVENTION

Picture discrimination in the workplace.

Likely you imagined different pay scales between men and women or a lack of career mobility for a racialized employee. While these examples may be common, it's not always this obvious or straightforward.

For example, the EEOC is suing Walmart for alleged disability discrimination and retaliation.

A former warehouse employee alleges that she was not granted an accommodation when she experienced sudden hand and wrist pain due to her neurological condition. Furthermore, she was fired nine days after submitting a complaint about the incident to the company's Global Ethics Office.

While it's not a direct promotion snub or social exclusion, this type of discrimination is just as damaging, to the victim, other employees, and your organization's reputation.

This guide will explain the many ways that workplace discrimination can occur (e.g., direct, indirect, intentional, unintentional, and reverse). Then, you'll learn how to identify and eliminate discriminatory policies and practices in your organization.

Discrimination at work may occur between colleagues, employee and employer, or between an employee and a third party (e.g. a client, contractor, or customer).

Specifically, it's the unfair treatment of an employee or candidate based on the class or category to which they belong, rather than on individual merit.

Protected Classes

Harassment, bullying, and discriminatory behavior should always be avoided.

However, discrimination in the workplace is only illegal when the victim is a member of a protected category (i.e., gender, age, disability, religion, race, sexual orientation, pregnancy, or national origin).

According to the EEOC, the five most common workplace discrimination claims in the 2021 fiscal year included retaliation (more on this later), race, disability, sex, and age.

During Recruitment

Discrimination can occur at any point during the recruitment process, from creating the listing to choosing interviewees.

The wording in job advertisements may discriminate against certain individuals or groups to dissuade them from applying at all. Some examples of this include:

• Gender discrimination: "foreman", gendered pronouns
• Racial/ethnic discrimination: "English must be your first language"
• Age discrimination: "recent graduate"

The ways that interviews are conducted, the questions asked, and the predetermined “right” answers are used can also discriminate against certain candidates.

For instance, some companies use jargon and slang as a way to show off their casual culture. But using this language in an interview could confuse older candidates, those from other countries, or those who speak English as a second language.

During Hiring

Discrimination also happens during the hiring process.

A potential employee may be given an employment contract with different terms and conditions than someone else would have received.

Or, the ideal candidate might be overlooked for a position because the hiring manager is stereotyping or makes uninformed and negative assumptions about the candidate.

For example, they might not hire a newly-married woman because they fear she'll go on maternity leave soon, or dismiss a Muslim candidate because they have to take "breaks" to pray throughout the work day.

Even referral hiring can be problematic, as university and professional networks often include people of the same race, socioeconomic background, and gender.

During Employment

Employment discrimination is often assumed to be something that happens to or between full-time employees.

Examples include being:

• Denied training
• Excluded from social gathering and groups
• Ignored in meetings or projects
• Denied credit for ideas and work
• Overlooked for deserved promotions, transfers, or benefits
• Unfairly demoted or terminated

But it doesn't happen to just permanent, full-time employees. It happens to seasonals, casuals, interns, and part-timers too.

Direct Discrimination

Workplace discrimination can be direct, indirect, or both.

Direct discrimination, also called disparate treatment, occurs when someone treats (or encourages others to treat) someone else unfavorably because of a protected class.

The victim could be a member of, thought to be a member of, or associated with someone who is a member of a protected class.

Direct discrimination happens because of stereotypes about the abilities and qualities of those in protected classes. These stereotypes lead to unfair and untrue assumptions about what a person from a protected group can or can’t do.

This type of discrimination is often intentional and obvious.

Example: "Sydney is deaf and only speaks ASL, so we shouldn't ask her to present at the board meeting."

Indirect Discrimination

Indirect discrimination, often called disparate impact, is when a policy or condition is imposed that, as a side effect, disadvantages a protected group (or a person from one).

The policy applies the same way to all employees, but they way it's written, it negatively impacts certain people.

Example: "All employees must work a Saturday shift at least once per month." (disadvantages employees who observe religious Sabbath that day)

Reverse Discrimination

Reverse discrimination is a fairly debated topic but one to explore nonetheless.

Title VII does not just prohibit discrimination against members of minority groups. It also protects groups that  typically experience lower levels of discrimination (like men and Caucasians).

Programs or systems that mean to correct past mistreatment of historically disadvantaged groups might actually end up discriminating against historically advantaged groups.

To avoid this while promoting diversity, set goals, not quotas. In addition, find ways promote equity for minority candidates and employees, such as recruiting at HBCUs or women's colleges, or offering employee training in multiple languages.

Example: "To get our diversity numbers up, we will only hire BIPOC candidates this quarter." (excludes white candidates based on their race)

Discrimination Laws

Not all types of employment discrimination are protected under law.

Title VII of the Civil Rights Act (1964) is the primary law against discrimination in the workplace. It prohibits discrimination based on protected classes such as race, color, religion, sex, and national origin.

There’s also the Age Discrimination in Employment Act (ADEA) that protects employees over the age of 40 from facing discrimination based on their age.

The Americans with Disabilities Act (ADA) prohibits discrimination based on physical or mental disabilities. Employers are required to provide a "reasonable accommodation" for employees with disabilities so that they can participate in application processes and job tasks.

Pregnant people and employees looking to grow their families are protected by both the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA).

Genetic information is protected now too, thanks to the Genetic Information Nondiscrimination Act (GINA).

Some states have enforced laws that prohibit discrimination for other things such as sexual orientation, gender identity, marital status, political affiliation, and more. Check out this list to see what's protected in your state.

Retaliation Laws

The Equal Pay Act (EPA) of 1963 makes it illegal to retaliate against an employee or candidate because they engaged in certain "protected" conduct.

Under the EPA, the following actions are protected conduct:

• Complaining about discrimination (real or perceived)
• Opposing discrimination (real or perceived)
• Refusing to participate in discrimination
• Filing a discrimination charge
• Planning to file a discrimination charge
• Aiding in a discrimination investigation

Is Favoritism Illegal?

Like most things: it depends.

Favoritism, or the practice of giving preferential treatment to a person or group at the expense of others, can be legal or illegal, depending on the circumstances.

Sometimes a manager will treat the workplace like it’s a schoolyard, giving their "pals" better opportunities and more leniency. Being on the boss's good side and receiving perks is legal.

But, preferential treatment that's given to a group of a certain race, age, sex, or religion is definitely illegal.

In other words, if an employee can prove that they were disadvantaged because of their affiliation with a protected class, as opposed to personal preference of the other person, they are protected by discrimination laws.

Example 1

Beth has worked for The Smith Company for ten years and recently found out she’s a few weeks pregnant. She’s excited and not superstitious, so she shares the news with a few colleagues.

Beth, still early into the pregnancy, applies for a more senior position that opened up in her department that same week. Despite being the ideal candidate, including being more experienced and more qualified than the other applicants, Beth isn't offered the promotion.

When she asked why she didn’t get the job, the hiring manager said they were looking for someone a little more “devoted”.

Example 2

Tommy works in construction.

A few months ago, Tommy expressed that he wanted to learn more about managing a team and asked his boss if he could start taking on more of a leadership role.

Since then, he has thrived in his new duties and is about to be offered a huge training opportunity.

Last weekend, Tommy’s boss saw him on a date with a man. The next day, Tommy finds that he’s no longer invited to sit in on management meetings and must return to his original job, effective immediately.

Example 3

Sally is 17 and works as a cashier at the nearby grocery store.

In school, Sally is learning about employment law and realizes she’s not being paid the national minimum wage for students. She tells her employer and they adjust her paychecks.

Then, a week before Sally’s 18th birthday, she’s let go from her job as a cashier. The employer said she "wasn’t performing".

The real reason behind her termination is that Sally would move into a higher age band and be entitled to a higher wage.

Understand a Lack of Complaints

First thing’s first: understand that having zero discrimination complaints doesn’t mean that there’s zero discrimination happening.

Why?

First, employees might simply be unaware of their legal rights as an employee and as a human being.

Second, many employees don't know how to file a formal discrimination complaint. So, they don’t.

Third, victims might decide to cope with the situation instead of reporting it, usually out of embarrassment/shame, fear of retaliation, or the desire to avoid the (often excruciatingly long) legal process.

For these reasons, discrimination in the workplace often remains a secret lurking below the surface of your culture.

Have a Complaint Mechanism in Place

An anonymous internal complaint system is a good way to address the three main reasons why employees don’t report.

1. It's a helpful tool for employees who are unaware of their legal rights or aren't sure how to report an incident.
2. It can save victims from both embarrassment and retaliation by offering them a way to report anonymously.
3. It fosters an environment where victims feel comfortable raising concerns they have without judgement or punishment.

Plus, it demonstrates that your organization is committed to addressing and preventing discrimination in the workplace. Victims will feel safe and bad actors might rethink their discriminatory behavior since they know they'll face real consequences.

If money is an issue, designating an employee to be in charge of receiving complaints is a good alternative to a formal hotline. This option might not be complainants' first choice, though, if they wish to remain anonymous.

React Promptly to Complaints

Discrimination in the workplace can be severely damaging to a victim. A thoughtful, punctual response to a complaint can provide the victim with the reassurance necessary to begin the healing process.

Examples of beneficial responses include:

• Moving the victim to another desk/department/office
• Allowing flexibility in the victim's work hours or letting them work remotely so they don't have to see the accused person
• Promising to look into the complaint and potentially conduct an investigation

During the reaction, remember to maintain as much confidentiality as possible by responding to complaints in a calm and discreet manner.

Reacting promptly also proves to victims that the complaint system isn’t just a formality. You'll show you're serious about keeping discrimination out of your workplace and that you want to keep them safe.

Investigate Claims of Discrimination in the Workplace

As part of following through, conduct an investigation if you find it necessary.

Interviews can uncover a lot, perhaps even more than the victim disclosed. However, you won't get the information you need without asking the right questions in the right ways. Watch this free webinar to learn how to effectively conduct a workplace investigation interview.

During the investigation process, record the names of those involved, keep interview details and notes, and save related emails. This documentation will come in handy during your final report and can even save you from legal trouble if the victim or accused challenges your decision. Using our Workplace Investigation Report Template will ensure you don't forget to include any important information.

If you determine that punishment is necessary, download this Disciplinary Action Form template. It will help you keep a thorough, compliant record of your decision to discipline or terminate the employee.

Follow Through with Remedial Actions

Prove your commitment to ending discrimination in the workplace and preventing future incidents by following through with the remedial actions you promised to victims.

Discrimination in the workplace can take many shapes and forms and varies in severity, so make sure the punishment fits the crime.

To avoid wrongful discipline/termination suits, lay out clear consequences in your code of conduct.

For example, for a first discrimination offense, an employee gets a warning. For the second, they must take a week of unpaid leave. If you have a zero-tolerance policy where one infraction leads to termination, state that clearly in your employee handbook.

Improve Awareness and Training

A great deal of discrimination is rooted in ignorance. Combat this by educating employees on discriminatory behavior, internal policies, and other laws.

Forget the black and white training tape from the ‘80s. An outdated, impersonal video won’t resonate with employees – it’ll put them to sleep. If you want to set the stage for an effective discussion and influence how staff understand and react to discrimination, you’ll need to invest time and money.

Real-life case studies, interactive training sessions, and examples of the different forms discrimination can take will make your modules more effective.

Assign Responsibility to Managers

Inform “the top”, including supervisors and other managers, that it’s their new duty to report any complaints of discrimination they receive directly or of which they’re aware.

They should also set a positive example by exhibiting and embracing inclusive behaviors.

Combatting discrimination in the workplace isn’t just for HR. The fight against misconduct is a task for everyone, including (and especially) those in leadership roles.

Embrace Diversity

Combat discrimination by embracing diversity in your workplace.

Affirmative action began as a way to remedy years of discrimination by forcing some companies to increase the participation of protected groups in their workforce.

Equal opportunity employment measures work to reach targeted goals instead of specific quotas and may include outreach campaigns and targeted recruitment.

Affirmative action policies face a lot of criticism due to reverse discrimination. For that reason, some companies prefer a laid-back approach with internal diversity programs. These programs promote diversity through networking, mentoring, or diversity and inclusion training.

Try New Approaches

Some companies have adopted more contemporary approaches to reducing unintentional bias.

Human resources departments are experimenting with anonymous trends such as hiring and auditions without knowing the candidate's name or image right away.

Studies have shown that names come with a lot of implicit bias. For a leadership position, a "manly" name might unintentionally stand out. Ethnic names are often overlooked despite candidates being as qualified as Jim or Mary.

Implement these practices in your own office or join companies like Google and Dolby who use an external system (like GapJumpers) to block implicit hiring bias.

Everyone loses when there's discrimination in the workplace.

Victims feel unsafe, unwelcome, and unvalued. Other employees lose faith in your organization if discriminatory behavior goes unchecked. Your company gains a poor reputation, leading to higher employee turnover, less top talent applying to open positions, and lost business.

For happier employees and a more successful organization, a little extra effort towards improving your investigation and prevention procedures will go a long way.