When is workplace discrimination illegal?
Discrimination in the workplace is illegal when it is based on the protected statuses of individuals. The protected statuses include race, national origin, color, sex, disability, religion, genetic information, disability, pregnancy, and others. Workplace discrimination based on the protected characteristics of an applicant or employee is always illegal, including subconscious bias and unconscious discrimination. Employers must carefully review their practices and policies to ensure that they are not discriminatory. If you believe that unlawful discrimination is happening in your workplace, you might want to get advice from the employment lawyers at Swartz Swidler. Employers cannot discriminate against current, prospective, or former employees in any aspect of employment.
What is discrimination?
Illegal discrimination occurs when an employer treats an employee or prospective employee differently from others based on the employee’s protected characteristics. This differs from employers making employment or hiring decisions based on the employee’s or applicant’s merit, which is how they should make their employment decisions. Discrimination against applicants and employees based on their protected characteristics is prohibited under Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, the Pregnancy Discrimination Act, the Age Discrimination in Employment Act, and other federal laws. It is also prohibited in New Jersey under the New Jersey Law Against Discrimination, which provides protection to additional groups beyond those who are protected under the federal anti-discrimination laws.
Protected characteristics
Under federal law, you are protected from employment discrimination based on the following characteristics:
- Age if over 40
- Color
- Gender
- Disability
- Race
- Religion
- Pregnancy
- National origin
- Sexual orientation
- Gender identity
- Genetic information
The New Jersey Law Against Discrimination also prohibits discrimination based on familial status, marital status, domestic partnership status, military service, atypical hereditary disorders, and age, including for people younger than 40. While Title VII applies to employers with 15 or more employees, the New Jersey Law Against Discrimination covers all employers.
Discriminatory employment practices
Discriminatory employment practices include any biases involved in recruiting applicants, interviewing, hiring, assigning jobs, compensating, promoting, demoting, providing training opportunities, giving bonuses, terminating, and other employment actions. Employment discrimination may be overt or hidden, and it also can occur when a policy or practice results in disparate treatment of protected groups. Harassment based on the protected characteristics of an employee is also illegal.
Overt discrimination happens less frequently than hidden discrimination. An example of overt discrimination might occur when a company refuses to hire a qualified Black candidate because of the hiring manager’s stated belief that Black people do not work hard. Another example might include making racist comments to members of a protected group at work or excluding them from meetings and training opportunities.
Most workplace discrimination is hidden and is applied through the attitudes and beliefs that people have about the candidates without stating them out loud. For example, a hiring manager who believes that Black people don’t work hard as described above might not actually say that out loud. However, if he or she believes it, he or she may find a different reason to reject the applicant even though the applicant is more qualified than a white candidate.
Hidden discrimination can also happen when pre-employment tests have a disparate impact on members of protected groups. For example, if a pre-employment test ends up screening out most applicants who are Hispanic, resulting in a homogenous workplace, the test might be unlawfully discriminatory.
Other prohibited practices
Under state and federal laws, employers are also prohibited from engaging in other related practices. Protection from discrimination for applicants and employees also include protection from the following types of practices:
- Harassment based on the protected characteristics of a worker
- Retaliation against an employee for filing a discrimination charge, participating in an investigation, or complaining about discrimination in the workplace
- Hiring decisions based on stereotypes of members of a protected group
- Denial of employment opportunities to people because of their relationship with members of protected groups
Enforcement of the discrimination laws
At the federal level, the Equal Employment Opportunity Commission is the agency that is tasked with creating regulations under the federal anti-discrimination laws and enforcing them. The EEOC also provides guidance to employers to help them prevent workplace discrimination from occurring.
In New Jersey, the NJLAD is enforced by the New Jersey Division on Civil Rights. If you believe that your employer has engaged in unlawful discrimination against you based on your protected characteristics, an experienced attorney at Swartz Swidler can help you decide whether to file a complaint with the EEOC, the DCR, or both.
Contact us today
While discrimination based on the protected characteristics of applicants and employees is illegal in all aspects of employment, it is still prevalent in many workplaces. For help with filing a discrimination charge, contact Swartz Swidler today by calling (856) 685-7420.
