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Follow these workplace anti-discrimination laws to keep your organization safe and compliant.
It is an employer’s responsibility to ensure their employees have a safe and inclusive workplace that is free from discrimination and harassment. As employers and employees navigate a combination of in-office and remote work, workplace discrimination may look a little different. Discriminatory practices don’t have to occur in the office to be considered workplace discrimination.
With this in mind, it’s critical to understand what workplace discrimination is, what discrimination laws apply to you and your team, and how to prevent this kind of behavior from occurring.
Workplace discrimination occurs when a worker is treated unfavorably based on a protected characteristic. Although the range of protected characteristics can vary from state to state, federal anti-discrimination laws protect employee characteristics, such as race, color, religion, national origin, sexual orientation, gender identity, disability, age and genetic information. All employees — even those under at-will employment — are afforded protection from discrimination based on these protected statuses.
It’s vital to understand exactly what constitutes unlawful discrimination as it can occur throughout any aspect of the employment relationship, such as during hiring, employment or termination. Some workplace discrimination is obvious and other incidents are more subtle. However, discrimination based on a protected characteristic is illegal no matter how subtle it is.
“While we often think of discrimination in terms of ‘big’ or decisive events, such as termination of employment, failure to hire or denial of a promotion, discrimination can also exist in day-to-day aspects of the employment relationship, such as denial of preferred shifts, disparate discipline and/or rescission or denial of responsibilities,” Andrea Milano, partner at Wiggin and Dana LLP, told Business.com.
Several anti-discrimination laws govern how you can and cannot treat employees and co-workers. The following federal laws protect workers from specific acts of discrimination. Keep in mind, each state or jurisdiction may also have its own laws and restrictions on what is deemed a discriminatory practice, so it’s crucial that you familiarize yourself with the laws and guidelines that are applicable to your location.
The Age Discrimination in Employment Act of 1967 (ADEA) protects employees (and certain applicants) 40 years or older from age discrimination in the workplace. This act applies to employers with 20 or more employees.
The Americans with Disabilities Act of 1990 (ADA) prevents discrimination against individuals with disabilities in all areas of public life, including employment. Title I of the ADA deals with employment and ensures that people with disabilities are fully considered during the recruitment process and provided reasonable workplace accommodations if needed. This act applies to employers with 15 or more employees.
The Equal Pay Act of 1963 (EPA) requires employers to maintain equality by paying men and women the same wages for performing the same jobs. The EPA is part of the Fair Labor Standards Act of 1938, which requires employers to comply with minimum wage, overtime pay, recordkeeping and youth employment standards and requirements.
The Family and Medical Leave Act (FMLA) requires employers to provide covered employees with job-protected and unpaid family leave for qualifying events. Qualifying events can include the birth or adoption of a child, having a serious health condition or needing to care for an immediate family member, such as a spouse, child or parent, who is suffering from a serious health condition. The FMLA applies to businesses with 50 or more employees, public agencies and elementary and secondary schools.
The Pregnancy Discrimination Act of 1978 prohibits employers from discriminating against employees based on pregnancy, childbirth or pregnancy-related medical conditions, such as miscarriage. This act applies to all employers covered under Title VII — see below.
The Pregnant Workers Fairness Act (PWFA) requires employers with 15 or more employees to provide certain accommodations for workers who have limitations related to pregnancy, childbirth or related medical conditions. Such adjustments might allow an employee to sit rather than stand, take extra restroom breaks or keep a water bottle at their workstation. Accommodation appeals don’t have to be formal or in writing, so train supervisors to recognize informal requests.
The Providing Urgent Maternal Protections for Nursing Mothers Act, known as the PUMP Act, extended the Fair Labor Standards Act’s protections for nursing employees. Covered employers must provide reasonable break time and a private space that is not a bathroom whenever a nursing employee needs to express milk for a year after the child’s birth. Some airline, railroad and motorcoach employees and companies with fewer than 50 workers (where compliance would impose an undue hardship) can fall outside these requirements.
Title II of the Genetic Information Nondiscrimination Act of 2008 prevents employers from discriminating against an employee due to their genetic information. This applies to federal and state governments, private employers with 15 or more employees, private and public employment agencies, labor organizations and joint-labor management committees.
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against job applicants and employees based on race, color, religion, sex or national origin. It also prohibits employers from engaging in retaliation against applicants or employees who exercise their legal rights, such as whistleblowing. Title VII covers all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.
The Immigration Reform and Control Act of 1986 prevents employers from discriminating against applicants and employees based on their citizenship or national origin. It also prohibits employers from knowingly hiring or recruiting workers who are unauthorized to work in the United States.
>>Read next: Everything You Need to Know About Hiring Foreign Nationals
Regardless of whether it is significant misbehavior or a minor transgression, discrimination on a protected basis is illegal and should be avoided at all costs. Because some instances of employment discrimination may be a bit unclear to employees, it is essential you train your staff on what is and isn’t acceptable behavior.
The five most common forms of discrimination are:
1. Retaliation: An employer may not retaliate against an employee for lawfully reporting an illegal, illicit, unsafe or fraudulent work practice — also referred to as whistleblowing. For example, the Occupational Safety and Health Administration (OSHA) grants employees the right to a safe and healthy work environment; if an employee lawfully reports unsafe or unhealthful conditions, the employer cannot take adverse action against the employee in retaliation.
Marianne Curtis, an employment litigation attorney and partner at Berger Singerman, said retaliation typically occurs between a boss and a subordinate, although it can occur between two colleagues. “The retaliation can be done in very subtle ways, such as isolation or providing unfavorable work,” Curtis said. “Alternatively, the retaliation can be more overt through termination with unstated or generic reasons as the basis for termination.”
2. Racial discrimination: It is illegal to discriminate against an employee due to their race. Although racial discrimination has been an issue in the workplace for a long time, social justice movements have magnified the impact of this type of discrimination in a very public way. “Employers must ensure that the work environment is not just ‘not racist’ but, rather, ‘anti-racist,’” Curtis said. “In other words, employers must take affirmative steps to ensure that Black employees and employees of color are protected from subtle forms of discrimination.”
3. Disability discrimination: It is illegal to discriminate against an employee due to their disability status. For example, you may not exclude an applicant from consideration for a job simply because of their disability, provided they can perform the job’s function with reasonable accommodations. Reasonable accommodations can include offering flextime, granting additional medical leave and making your office wheelchair accessible.
4. Sex discrimination: It is illegal to discriminate against an employee due to their sex, including gender identity, sexual orientation and pregnancy status. For example, an employer is not allowed to discriminate against an employee or applicant due to their LGBTQ+ status. They are also not permitted to pay men and women different salaries based on their gender. [Related article: 7 Ways for Improving Your Workplace Diversity and Inclusion]
“The most ubiquitous form of discrimination that women still face can be as simple as inappropriate comments from men that suggest women should not be in the workplace or inappropriate commentary on a woman’s body — even if the man believes it to be a ‘harmless’ joke,” Curtis said.
5. Age discrimination (ageism): Employees may not be discriminated against due to their age. The ADEA protects employees 40 and older, but some states also have legal protections for employees under 40. Age discrimination is often experienced when employers don’t want to hire older employees because of perceived limitations. Employers may not specify age preferences when recruiting new candidates and they may not promote, terminate or compensate employees based on age either.
A few other protected characteristics that are sometimes discriminated against in the workplace include religion, national origin and genetic information.
If an employee experiences discrimination in the workplace, the employer may face many consequences based on the severity of the transgression and the governing state. For example, Thu Do, equity partner and an attorney at Employer Defense Group, said that harassment, discrimination or retaliation in the workplace can cause physical and/or mental injuries to an employee, resulting in legal action against the employer.
“In many states, including California, workers’ compensation might be available to pay for those injuries, but it’s not always the only remedy for a victim of discrimination to get money,” Do said. “Victims can also file a lawsuit in civil court for the harassment, discrimination and retaliation in addition to filing a workers’ claim.”
In addition to lawsuits, discrimination claims can cost your business in terms of money and reputation. What’s more, if your business is liable for cultivating a work environment that normalizes and accepts workplace discrimination, you will likely face bigger problems than one discrimination lawsuit.
Milano said employer risks can include:
Here are some best practices to help prevent discrimination at your company:
The best way to prevent discrimination in the workplace is by implementing proper policies. Every small business owner should establish written anti-discrimination protocols. “There must be a uniform system in place to address complaints or reports of discrimination,” Do said. “This uniform system should apply to all individuals in a business regardless of the position.”
You should offer all employees training in anti-discrimination practices. You can also conduct specialized management training so leadership can handle any complaints properly. Many of the best HR software platforms include training modules and completion tracking, which makes it far easier to document who was trained and when — records that matter if a claim is ever filed. Make sure that you regularly update training materials to reflect company or legal changes.
Management and human resources should always review job descriptions, standard hiring questions and evaluation criteria for discriminatory language. Companies should ensure that their policies are applied consistently to all employees and potential hires.
Creating a safe and inclusive workplace starts from the top down; business leaders must set an example for their organization and show that discrimination will not be tolerated. You also want to foster an open culture that encourages employees to report any issues they encounter and address any concerns staffers raise in a timely and professional manner. When employees know you are taking this matter seriously, they are more likely to comply.
“Anti-discrimination laws provide the floor of what conduct is legally unacceptable, but everyone within your company should be striving to maintain a respectful workplace where everyone is treated with dignity and respect at all times and on all bases,” Milano said.
Source interviews were conducted for a previous version of this article.
