Think of an example of discrimination in the workplace.
Maybe you imagined different pay scales between men and women, or a lack of opportunity for the Asian manager. And while these examples are correct, it’s not always this straightforward.
A lot of the time, discriminatory behavior exists in the places you haven’t thought to look.
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 your own discriminatory practices.
P.S.: Strong policies can highlight core company values such as inclusivity and acceptance. Use this template to develop an employee handbook that fosters a healthy company culture.
84,254 workplace discrimination charges were filed with the EEOC in 2017.
And while this number is high, it doesn’t include employees who resolved issues internally or victims who chose not to come forward at all.
This statistic is also prior to the powerful #MeToo movement, which will undoubtedly create a massive spike in the number of claims.
Discrimination at work may occur between colleagues, employee and employer, or between an employee and a third party. 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.
Discrimination in the workplace is illegal when the victim is a member of a protected category (i.e., gender, age, disability, religion, race, sexual orientation, pregnancy and national origin).
Harassment and discrimination are not the same. Check out our post on 11 Types of Workplace Harassment to learn more about harassment.
According to the EEOC, the five most common workplace discrimination claims in the 2017 fiscal year included retaliation (more on this later), race, disability, sex and age.
Discrimination occurs during the recruitment process.
The wording in job advertisements may discriminate against certain individuals or groups to dissuade them from applying at all.
For example, a company seeking “men for construction work” might be exhibiting gender discrimination.
How interviews are conducted, the questions asked and the predetermined “right” answers are sometimes used as a way to discriminate against certain candidates.
Discrimination also happens during the hiring process.
For example, 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.
Employment discrimination is often assumed to be something that happens to or between full-time employees.
Is There a Bully in Your Office?
A workplace bully can make it an intimidating, unproductive place for employees. Watch this webinar on how to stop bullying behavior at work.Watch Workplace Bullying: What, Why and Who?
Examples include being denied training; overlooked for deserved promotions, transfers or benefits; and being 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.
If an employment practice negatively impacts a person belonging to a protected group, even indirectly or unintentionally, it may be discrimination and you can be held responsible for those consequences.
Let’s dive into the specifics of direct, indirect and reverse 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 their 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.
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).
For example, implementing hiring criteria that just so happens to screen out women or minority group members has a disparate (and negative) impact on members of these groups.
To learn more about disparate treatment (direct) and disparate impact (indirect), check out the full guide.
Reverse discrimination is a fairly debated topic but one to explore nonetheless.
Title VII does not just prohibit discrimination against women or minority members, it also protects groups that are typically understood as somewhat free from 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.
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 and 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.
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In this webinar, Cynthia Calvert defines family responsibilities discrimination (FRD) and why you should be concerned about FRD claims in your office.Watch Investigating FRD Claims
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.
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 follow 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, 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.
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.
Watch this webinar to learn more about pregnancy discrimination and accommodation requirements.
When she asked why she didn’t get the job, the hiring manager said they were looking for someone a little more “devoted”.
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.
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 paycheques.
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 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.
First, a large number of employees are simply unaware of their legal rights as an employee and as a human-being.
Your code of conduct is a great place to highlight the legal rights of employees. Borrow our template.
Second, many employees are unaware of how to file a formal discrimination complaint. So, they don’t.
Third, many victims decide to cope with the situation instead of reporting it, usually out of embarrassment or to avoid the (often excruciatingly long) legal process.
Fourth, some victim fear retaliation if they come forward.
For these reasons, discrimination in the workplace often remains a secret.
Have a Complaint Mechanism in Place
An anonymous internal complaint system is a good way to address the four 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 embarrassment by offering them a way to make a complaint anonymously.
3. It fosters an environment where victims feel comfortable raising concerns they have without judgement or punishment.
Plus, it demonstrates that the company is committed to addressing and preventing discrimination in the workplace.
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 can have anonymity issues though)
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 taking immediate steps (moving the victim away) or promising to conduct an investigation.
Follow the four basic steps of the AIRR model for a more effective approach to handling employee complaints.
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.
Investigate Claims of Discrimination in the Workplace
As part of following through, conduct an investigation if you find it necessary.
Don't Be Left Scrambling...
…When your company faces a discrimination claim. This free investigation plan template will guide you along the ins and outs of a workplace investigation.Download the Investigation Plan Template
Interviews can uncover a lot, watch this webinar to learn how to effectively conduct a workplace investigation interview.
Record the names of those involved, keep interview details and save related emails. This documentation will come in handy during your final report. Our Workplace Investigation Report Template may come in handy too.
If punishment is necessary, check out this Disciplinary Action Form template.
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, many forms and varies in severity, so make sure the punishment fits the crime.
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.
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.
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.
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 its 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.
New Trends and Modern Approaches
Some companies have adopted more contemporary approaches to reducing unintentional bias.
Human resources departments are experimenting with “blind” trends such as blind hiring and auditions.
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.