The Complete Guide to Workplace Discrimination in 2021

The Complete Guide to Workplace Discrimination in 2021
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One of the common misconceptions is that keeping your head down and simply doing your job will make you exempt from discrimination. That notion is wrong – every employee is discrimination eligible employees, as long as they work in a bad environment. With that in mind, we have compiled this complete guide to workplace discrimination. Whether the person who is or might be exposed to discrimination is you or someone you know, it is always good to learn more about this topic and be ready for any situation. Let us start by describing an environment where discrimination happens:

What Is A Hostile Work Environment?

A hostile work environment could be described as a workplace fostering unwelcome or offensive behavior that can cause one or more employees to feel uncomfortable, intimidated, or scared in their place of employment. To be more precise, a hostile work environment presents a sum of actions such as ways of communication and manners of behavior from other co-workers (either colleagues or higher-ups) that exceed an employee’s or employees’ boundaries of comfort in the said workplace.

However, it is rather hard to discern when a work environment grows from uncomfortable to hostile, and finally, to unlawful, as judges use no precise formula. This is due to the fact that cases of illegal hostile work environments are quite circumstantial and depend on the facts presented on a case-to-case basis. Moreover, the person or persons behind creating a hostile environment rarely admit that which forces the legal system to resort only to the information available through a sum of circumstances.

Nevertheless, a few factors exist that can account for the final decision of the judge and the court. Even though each case is individually looked over, the following criteria are usually fulfilled by hostile work environments. Those environments are usually fostering behavior and actions that are:

  • Discriminatory
  • Pervasive
  • Severe
  • Repellent

Discriminatory Behaviour

According to Civil Rights Act (1964), Title VII, discrimination can be based on employees’ gender, race, national origin, color, and religion; and they are protected from it. Additionally, discrimination against employees with disabilities, who take medical leaves, or use workers’ compensation is also illegal.

However, discriminatory comments related to those characteristics are often said as a joke or played off like they are insignificant, making it hard for the employee to fight back against them without antagonizing themselves. Nevertheless, discrimination creates a hostile atmosphere for the employee, whether it be straight-on or roundabout.

Thankfully, Title VII is what helps an employee pursue legal action. However, it is crucial to note two things. First being that it does not apply to businesses with less than 14 employees, private member clubs exempt from taxation, Indian tribes, and employers of foreign nationals outside the United States. Second, a statute of limitations for filing a claim exists – the worker has up to six months (180 days) to file a charge with the EEOC, counting from the day the last discriminatory act occurred.

Pervasive Actions

Before we begin with this section, it is crucial to note that, in some situations, severity outweighs longevity, and that is when one single event is enough to create a hostile environment.

However, in most cases, the actions that led to creating a hostile work environment are long-lasting, pervasive, and most definitely not limited to one or two passing remarks. This differs from workplace bullying – which has no legal consequences – in its continuous and all-encompassing nature. Usually, this is measured by the court exploring the situation by asking a question: would any other ordinary employee in such circumstances find that this behavior is creating a hostile work environment?

Severe Actions

Severe actions and behavior that create a hostile work environment include those that seriously disrupt and negatively affect the employee’s or employees’ work and performance. For example, these actions and behavior may interfere with career progress by causing the employee to avoid the workplace, such as calling in sick more than necessary or underperforming due to unnecessary stress.

However, severity is often subjective, making it difficult to gauge the seriousness of the situation. It bears repeating that casual teasing, rude comments, and minor, isolated incidents are not included in the scope of the laws protecting against discrimination, as they would fall under the category of bullying.

Repellent behavior

The incident or incidents that warrant a formal complaint or report need to be unwelcome or repellent, like all forms of misconduct, harassment, and inappropriate behavior. disparate treatment discrimination

Typically, it is required to prove that the victim attempted to do something about the unwanted behavior, but it continued. For instance, that can be reaching out to employees in the Human Resources sector to report the incident or behavior, providing solid proof that this type of behavior was unwelcome.

Additionally, large-scale adverse behavior that leads to the creation of a hostile work environment can also be valid in court, as per the 1935 National Labor Relations Act (NLRA).

NLRA protects employees’ rights, with Section 7 explicitly stating that the following is guaranteed to all employees:

“The right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

Possible Bases For Discrimination

While discrimination is prohibited and punishable by law, it is still, unfortunately, a common occurrence in many workplaces. This section will aim to help you recognize the most common types of discrimination and provide you with the information needed to prevent or stop it from happening.

Sex And Gender

Unfortunately, discrimination based on gender identity or sex is still one of the more prevalent ones. It can manifest through seemingly harmless jokes, such as “go back to kitchen,” which are ingrained in the culture and not seen as hostile most of the time. However, it is good to keep track of such events and ensure that they do not pass unnoticed, as they can evolve into something much more significant if it is not confronted at the very beginning.

In these cases, The Equal Pay Act of 1963 is applicable, as it explicitly states that both men and women must be provided with equal pay for equal work. Furthermore, the act specifies that the work done while on the job and not title determines whether jobs and workloads are equivalent. Moreover, Civil Rights Act, Title VII, also prohibits discrimination on the basis of sex.

Race

Depending on the employee’s location, there are different types of discrimination based on race or skin color that can be encountered. Such discrimination may take many forms – from sideways glances to direct insults or threats to the position held at the organization.

However, it is crucial to remember that it is illegal to treat either an applicant or an employee to their disadvantage due to their race or personal prejudices associated with their race under the Title VII of the Civil Rights Act. Color discrimination also falls under this umbrella. This entails treating someone unfavorably due to their skin color complexion, and it is also unlawful.

Age

Another basis for discrimination may be age. Due to ageism and young, inexperienced workers requiring a lower overall salary, companies may opt for laying off older employees to cut costs. This may manifest in a more senior employee’s performance reviews suddenly being worse, regardless of the amount of work they put in, or in employing many younger persons and then using that as an excuse to fire other, older workers.

However, it is essential to keep in mind that employees must receive the same benefits regardless of age. The only exception is when providing reduced benefits to older workers equals the cost of providing supplemental benefits to young workers. Furthermore, age discrimination in apprenticeship programs or internship opportunities is illegal.

To be precise, age discrimination is a practice expressly prohibited by Age Discrimination in Employment Act of 1967 – ADEA. Additionally, companies are not allowed to specify an age preference in job advertisements, except in a few rare cases.

Religion

Due to the culture in the United States of America, discrimination based on religion is another possible cause of intolerance. That may range from an employer refusing to accommodate the employee’s religious beliefs to the colleagues ensuring that the employee in question feels unwelcome in the workspace due to their beliefs.

However, in line with the Title VII of the Civil Rights Act, it is unlawful for employers to discriminate based on an employee’s religious customs. Moreover, they must make reasonable accommodation of an employee’s religious beliefs, as long as doing so doesn’t have excessively negative consequences for the employer.

Disability

And last but not least is discrimination based on disability. Regardless of the inclusion education and training a company may go through, there is always a chance that an interviewer or a higher up may have a personal bias against individuals with disabilities, regardless of their disability status; thus causing them to create a hostile work environment to make the person in question quit. Or, perhaps, the business strategy of the company does not see the sick leave practices or types of accommodations the individual might need as profitable to the company as a whole and, with that, it writes off a whole group of people based on a bias.

However, the Americans With Disabilities Act (ADA) of 1990 made it illegal to discriminate against qualified job candidates or employees based on disability. In practical terms, employers cannot refuse to hire disabled candidates or penalize disabled workers purely for their disabilities.

Moreover, the Rehabilitation Act of 1973 forbids discrimination in federal employment, much like the ADA.

Additionally, employers are obligated to make reasonable accommodations for disabled applicants and employees, which may entail making physical changes to the workspace or changing workday schedules. And that, in turn, may cause the employer to look the other way when discrimination is happening at the workplace, as that may be another way to cut the costs.

What To Do If You Are A Victim Of Discrimination

All types of employees, from full-time employees to ones hired through a temp agency, are susceptible to discrimination. Hence, it is vital to be prepared to respond in line with the level of threat discrimination may pose, whether you are the one experiencing it or the one bearing witness to discrimination happening.

Make Sure That Discrimination Is Involved

It bears highlighting that a person’s perception of events can make them feel that they’ve been discriminated against, even when that might not be the case. Hence, you should make sure that you have actually been a victim of discrimination before taking any action against those you feel are responsible. As we have mentioned earlier, the court will most probably gauge the severity of the situation by asking: would any other ordinary employee in such circumstances find that this behavior is creating a hostile work environment?

To ensure you have been discriminated against, try to look at the situation from a different perspective since you need to determine as objectively as possible if you have been discriminated against before you take any action.

Additionally, look up the laws and definitions of discrimination mentioned above, and compare them with your experience. Is there a valid explanation for what happened? Does it amount only to bullying, or could what you’ve experienced amount to discrimination?

Gather Evidence

If you have determined with certainty that you are a victim of discrimination, the next step would be gathering as much evidence as possible about the act (or acts) of discrimination before you decide to step ahead and file a complaint. For instance, you could attempt to obtain copies of any documents about the discriminatory event (or events) – emails, a performance appraisal, a written warning, or even a termination letter.

Bear in mind that gathering evidence can be challenging because discrimination often comes in the form of actions or conversations challenging to document. For instance, how can you confirm that you were not promoted because of your gender or ethnicity if your higher-up claims a nondiscriminatory reason, such as occasional tardiness? As there is no hard evidence of discrimination in such cases, it may be challenging to prove.

In situations like those, the best course of action would be writing down what happened and when it took place or keeping a diary if the discrimination is continuous. This will give you essential evidence if you do file a discrimination complaint.

List as many details as you can.

– What was the act of discrimination

– When and Where it took place

– Who were the perpetrators and witnesses, as well as your response to it.

Take care as you gather evidence, though – for instance, try avoiding the use of employer’s resources when doing so that you cannot be accused of their misuse.

Reporting Discrimination

When you have gathered sufficient evidence and are ready to report discrimination, if your employer has a grievance procedure or discrimination policy – follow that. Most large organizations have dedicated human resources professionals to handle these issues; if this is the case, it is often best to consult them first before making a formal complaint about the reasons mentioned in the text above.

When reporting discrimination, be clear about the fact that what you are reporting is unacceptable, and do your best to be assertive and firm about this. Keep in mind that discrimination can go unpunished if the victim tries to minimize the issue or make it sound less traumatic than it was. This is also when you should use the evidence you’ve gathered to back up your claims.

Suppose you find that your organization does little to address your complaint. In that case, you might need to file an EEOC complaint or consult a legal professional.

Coping With Discrimination

However, do keep in mind that you might not be able to resolve a discrimination issue quickly in some cases, if at all. Moreover, you may experience reprisal from your co-workers and the organization as a whole if you raise a complaint. If this happens, it’s essential to know how to cope with the emotional pain, stress, and hardship you might experience.

This is one reason why hiring professionals can aid you in filing a claim of unlawful discrimination, such as Cilenti & Cooper. They are a law firm dedicated to ensuring that every employee’s experience of a misdemeanor, whether it be discrimination or wage theft, does not go unpunished.

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