In the U.S., federal and state anti-discrimination laws prohibit workplace discrimination. While it can be difficult to identify, it is possible if you know the signs. The attorneys at Swartz Swidler can help you to determine whether unlawful discrimination might be occurring at your job. By understanding the signs of workplace discrimination, you might have a better idea of when you might have grounds to take action.
What is unlawful workplace discrimination?
Unlawful workplace discrimination is discriminatory actions based on the victim’s protected class, including his or her race, religion, color, national origin, disability, age, sex, genetic information, or pregnancy. Some states protect additional classes and cover all employers while federal law protects workers at companies above a certain size. There are several signs that your employer is engaging in unlawful workplace discrimination. We will cover some of the signs below.
Questionable conduct during the hiring process
Employers are prohibited from asking certain types of questions during interviews based on the protected class of an applicant. Some examples of questions that employers cannot ask during interviews include the following:
- Questions about marital status
- Questions about whether women intend to become pregnant
- Questions about familial status
If information about the applicant’s family comes up, the employer is forbidden from using the information to assess his or her fit for the job.
Another type of unlawful practice during hiring includes when employers refuse to hire someone based on his or her religious clothing or accent. An English-only rule may be unlawful if English fluency is unnecessary for the effective performance of the job.
Using language that reveals an unlawful bias
The language used by some employers can reveal their unlawful biases. For example, an employer stating that a woman doesn’t work as hard after she becomes a mother can indicate discrimination. Employers who make comments that reveal their stereotypes about people of protected classes might be engaging in unlawful discrimination when they rely on their biases to make employment decisions.
Unfairly promoting less qualified people
When male employees or other members of a majority group are consistently promoted over more qualified female workers or members of other protected classes, the employer could be engaged in unlawful discrimination based on the more qualified workers’ protected characteristics. An employer may also be engaging in unlawful discrimination when male employees are offered better assignments and opportunities than female employees.
Under the Equal pay Act, men and women who have jobs that are substantially similar in the same workplace must be paid equally for their work. Compensation discrimination is also prohibited under other federal laws based on color, race, sex, religion, age, national origin, or disability. Situations in which women and other protected class members are paid less than men or members of the majority class may constitute illegal workplace discrimination.
Making assumptions about the plans or abilities of an employee
In some cases, an employer’s assumptions about the plans or abilities of an employee can signal workplace discrimination. Some examples of these assumptions include the following:
- An employer’s assumption that a pregnant woman will not come back after taking maternity leave
- An employer’s assumption that a pregnant woman will not be able to perform the duties of her job
- The assumption that an older worker will retire at a specific age
These types of assumptions might indicate that your employer is engaging in unlawful discrimination in the workplace.
Differential discipline or application of policies
Employers sometimes reveal discriminatory intent when they discipline members of a protected class differently than they discipline members of the majority class. For example, if the employer has an attendance policy in place that it routinely enforces solely against members of a protected class, it can indicate unlawful workplace discrimination.
Employers are prohibited from retaliating against workers who have engaged in a protected activity. This includes activities through which employees exercise their rights against discrimination by filing complaints. There are multiple types of protected activities, including the following:
- Filing a discrimination complaint
- Participating in an investigation of another worker’s discrimination complaint
- Participating in an investigation by an agency of the employer’s discrimination
- Asking for reasonable accommodations for a disability
- Reporting an employer’s unlawful actions
- Refusing unwanted sexual advances
- Serving on a jury or in the military
- Taking FMLA leave
Employers are allowed to terminate or discipline employees for reasons that are not discriminatory. However, they may not retaliate against employees because they engaged in protected activities. They also cannot take actions that are intended to dissuade workers from engaging in protected activities in the future. Unlawful retaliation includes conduct by the employer in all aspects of employment, including the following:
- Firing an employee for engaging in protected activities
- Disciplining the employee for engaging in protected activities
- Subjecting the employee to increased scrutiny for engaging in protected activities
- Harassing or threatening the employee for engaging in protected activities
- Transferring the employee to a less desirable job for engaging in protected activities
Proving workplace discrimination has occurred
Unfair treatment in the workplace based on your protected characteristics is illegal. While it can be difficult to identify workplace discrimination, understanding the signs that it may be occurring can help. To prove that illegal workplace discrimination has occurred, you will need to gather evidence. Document every incident you see with the date, time, and the people who were present. Try to handle the issue within your workplace by filing an internal complaint. If that does not work, you should talk to an experienced employment law attorney at Swartz Swidler. We can evaluate your documentation and the facts to advise you about the merits of your case. Contact us today by filling out our contact form or by calling us at 856.685.7420.