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The Ten Types of Discrimination: Essential Employer Guide
If an employer discriminates against an employee, it means that they are treating them differently than other employees for a particular reason. In the United States, individuals cannot be discriminated against by their employees for their race, color, religion, sex, national origin, disability, age, or genetic information.
The U.S. Equal Employment Opportunity Commission enforces many of the laws surrounding discrimination in the workplace. Individuals are protected from unfair treatment, harassment, retaliation, denial of a reasonable workplace change, and improper questions regarding medical or genetic information.
Understanding the laws surrounding discrimination is essential for any employer in the U.S. Let's look at the ten types of discrimination to help you ensure that all of your employees are receiving fair treatment.
- Identify subconscious behaviors
- Understand micro-inequities
- Become aware of behaviors and actions
1. Age Discrimination
One significant type of discrimination in the workplace to know about is age discrimination. Thanks to the Age Discrimination in Employment Act of 1967, individuals 40 years old or older are protected from discrimination by employers based on their age. Employers are not allowed under the law to discriminate against an individual in relation to any condition, term, or privilege of employment due to their age.
For example, you can't fire someone just because they are older and nearing retirement age with the hopes of bringing in a longer-term employee. Additionally, you cannot assign a job to one person over another for reasons related to their age.
2. Disability Discrimination
Another relevant piece of legislation regarding workplace discrimination is Title I and Title V of the Americans With Disabilities Act. The ADA was signed in the summer of 1990 by George H. W. Bush and ensures that people with disabilities are provided with a broad spectrum of civil rights protections.
Employment discrimination is discussed in Titles I and V and prohibits employers from discriminating against individuals with mental and physical impairments who otherwise meet the necessary qualifications for employment.
All aspects of the employer-employee relationship are covered under the ADA, with discrimination based on disability prohibited in the following processes:
- The application process
- The hiring process
- Any other conditions, terms, or privileges of employment
Under the ADA, people with disabilities aren't required to receive preferential treatment. Employers do not need to give favor to people with disabilities, but instead must not discriminate against them based solely on their disability, whether real or perceived.
Nearly twenty years later, another piece of legislation was passed that relates to disability discrimination in the workplace. This legislation is the Americans with Disabilities Act Amendments Act (ADAAA). In brief, this Act makes the definition of disability under the ADA clearer and more broad. Essentially, it makes it easier for people who are looking for protection via the ADA to effectively establish that their disability meets the definition within the Americans with Disabilities Act.
3. Sexual Orientation and Gender Identity
Employers are prohibited from discriminating against individuals based on sexual orientation or gender identity. That is found under Title VII of the Civil Rights Act of 1964.
A landmark decision was issued by the United States Supreme Court in the Bostock v. Clayton County case, which found that workplace discrimination against a person on the basis of transgender status or sexual orientation is prohibited under Title VII of the Civil Rights Act.
Under Title VII, all current employees, job applicants, and former employees are protected so long as the employer has a workforce of fifteen or more employees. Employers that do not have at least fifteen employees aren't subject to Title VII, nor are Tribal nations.
Individuals are also protected regardless of their immigration status or citizenship. That applies to every U.S. state, the U.S. territories, and Washington, D.C. Title VII applies across the country regardless of the local or state laws.
There are a broad range of protections afforded to individuals in Title VII. Employers aren't allowed to discriminate based on gender identity or sexual orientation regarding hiring, firing, training, discipline, promotions, demotions, pay, overtime, work assignments, fringe benefits, etc.
4. Status as a Parent
A person's "status as a parent" refers to whether or not they have a child or children. That doesn't just mean having biological children– it also applies to adoptive parents, step-parents, foster parents, guardians, or individuals serving as a minor's custodian.
An individual's right to not be discriminated against based on their parental status was put into law through Executive Order 13152, which amended Executive Order 11478.
The Civil Service Reform Act of 1978, as amended, also protects individuals based on their marital status. Employment discrimination in the Federal government is prohibited if it is based on marital status or political affiliation, as well as any conduct that doesn't negatively impact an employee's performance.
However, the protections for people based on marital status don't fall within the jurisdiction of the U.S. Equal Employment Opportunity Commission. Instead, the Merit Systems Protection Board (MSPB) and the Office of Special Counsel (OSC) handle this aspect of discrimination.
5. Religious Discrimination
Employers are prohibited from discriminating against people due to their religion or religious beliefs in any terms and conditions of employment, including hiring and firing. That has been the case ever since the institution of Title VII of the Civil Rights Act of 1964.
Employers must also accommodate, within reason, an employee's religious practices. The same is true of the religious practices of a prospective employee. They are only not required to do so if it means the employer would experience an undue hardship.
Undue hardship can be claimed by an employer when an employee's request for religious accommodation results in the employee incurring more than administrative costs. It can also be claimed if a bona fide practice must be changed to make this accommodation and denies an entitlement to another employee.
If you're curious about what is considered a reasonable accommodation, here are some examples. For example, an employer is expected to allow some flexible scheduling for an employee to attend religious observances. For instance, the employer must allow for things like voluntary swaps, voluntary substitutions, lateral transfers, and job reassignments to accommodate an employee's religious beliefs.
Individuals who ascribe to non-traditional religions are protected under Title VII. The Department of Labor even notes that atheists are protected under this law– they cannot be discriminated against for their sincere lack of religious beliefs.
6. National Origin
It is also unlawful to discriminate against an employee due to their national origin. National origin is defined as an individual's:
- Linguistic characteristics
For example, employers cannot discriminate against an individual due to their accent or manner of speaking. If an employee claims that they have been discriminated against in this manner, the employer is responsible for providing a nondiscriminatory reason that an action was either taken or denied. Any investigation into this type of claim will focus on the employee's qualifications and whether job performance can be impacted by the individual's manner of speaking or accent.
Verbal or physical conduct in reference to an employee's national origin, such as an ethnic slur, is prohibited under Title VII. This is considered harassment if it is found to create a hostile, intimidating, or offensive working environment. Furthermore, it is considered harassment if it negatively impacts the individual's opportunities in the workplace or interferes with work performance unreasonably.
Pregnant employees are also protected from discrimination under the law. An amendment to Title VII of the Civil Rights Act of 1964, known as the Pregnancy Discrimination Act, makes it unlawful to discriminate against an employee due to childbirth, pregnancy, or other related medical conditions.
If a pregnant employee has been placed on restrictions by their doctor, for example, and is, therefore, unable to perform her job temporarily, the employer must give her the same treatment they would give to any other employee who was temporarily disabled. For instance, if alternative assignments or modified tasks are offered to an employee who has broken a bone, a pregnant employee must be afforded the same flexibility.
8. Sexual Harassment
Another important form of discrimination in the workplace is sexual harassment. Sexual harassment occurs when an individual receives unwelcome and unwanted advances that are, in nature, sexual. That could be as simple as a joke or could include a written note, sharing a picture, or a touch. Sexual harassment doesn't need to be intentional to be considered unlawful.
Sexual harassment is often divided into two categories: Quid Pro Quo and a hostile work environment.
Quid Pro Quo means that an individual in a position of power in relation to another individual offers to make a trade: a benefit or tangible employment action in return for a sexual favor. This type of sexual harassment can only be committed by someone who can change the conditions of the victim's employment.
On the other hand, a hostile work environment describes a workplace where sexually oriented activity is a part of the culture due to the actions and words of both employees and supervisors. It is rare for sexual harassment to occur as one stand-alone event. Both men and women can be victims of and harassers in sexual harassment in the workplace, and a victim can be of the same sex as the harasser.
Anyone affected by offensive conduct can report harassment– not necessarily just the victim. At the same time, conduct must be sexual in nature to be considered sexual harassment. For example, if a manager asks an employee to lunch regularly, this is not enough to be considered sexual harassment.
9. Race, Color, and Sex
Employers cannot discriminate based on race, color, or sex under Title VII of the Civil Rights Act of 1964.
Race discrimination occurs when an employer treats an employee differently due to unalterable characteristics. For example, it is unlawful for an employer to discriminate based on physical features commonly attributed to a person's race.
Color discrimination, on the other hand, is specific to discriminating against an employee based on their skin pigmentation. That means that even employers within the same ethnic group as their employees can commit color discrimination.
When men and women who are in a similar position aren't treated the same because of their different genders, sex discrimination takes place. To be considered sex discrimination, the offenses must be repeated, unsolicited, and deliberate. These might include gestures, verbal comments, or unwanted physical contact that is sexual in nature.
An organization can also commit sex discrimination when its policies negatively and disproportionately impact an individual or group based on their sex or gender.
10. Reprisal / Retaliation
Individuals are also protected in the workplace against discrimination if they have taken some action against the organization.
That pertains to people who have:
- Participated in a charge or investigation
- Filed a charge or a complaint
- Opposes an employment practice that constitutes illegal discrimination
It is, unfortunately, not unheard of for a company to take adverse or discriminatory action against an employee who has acted in some way against the organization. For example, they might suspend, demote, or discharge the employee, refuse to hire a prospective employee, or deny a promotion to an existing employee. Another example would be if they denied job benefits to the employee.
Reducing the Risks of Workplace Discrimination Through Training
At HRDQ, we offer many courses, workshops, and tools that can help your entire team gain a greater understanding of the importance of embracing diversity and creating an inclusive environment.
Through our Appreciation Diversity Customizable Course, you and your team can learn more about the subtle ways that bias occurs in the workplace. Our Diversity Works training game is perfect for giving your entire team exposure to diversity awareness in a way that helps create opportunities for real conversations that drive change. Finally, our Diversity Awareness Profile is a self-assessment tool that can help each individual improve their relationships at work with diverse co-workers and clients.
Do you have any questions about employer discrimination, our customizable courses, workshops, and tools, or anything else we discussed in this article? If so, be sure to leave us a comment down below, and we'll get back to you within a day or two! We make it a point to reply to every comment we receive, and we'd be more than happy to assist you however we can.
- Identify subconscious behaviors
- Understand micro-inequities
- Become aware of behaviors and actions