Most people know that discrimination refers to being treated unfairly as compared to how others are treated. While discrimination might be unfair, it is not always illegal. Unlawful discrimination occurs in the workplace when someone is discriminated against based on their protected characteristics, and this type of discrimination can happen at any time during the employment relationship, including in job advertisements, interviews, the onboarding process, salaries, hiring, promotions, training opportunities, demotions, layoffs, terminations, and more. When an applicant or employee is treated unfavorably because of their protected characteristics, the employer might be liable for unlawful discrimination.
Protected Characteristics
Protected characteristics are those included in Title VII of the Civil Rights Act of 1964, its amendments, and other federal anti-discrimination laws. State anti-discrimination laws might also include additional categories. Under federal law, the following characteristics are protected against discrimination:
- Age (over 40)
- Race
- Color
- Gender identity
- Disability
- Pregnancy
- Sexual orientation
- Religion
- National origin
- Genetic information
- Citizenship status
- Sex
Discrimination in the workplace based on these characteristics of an applicant or employee is illegal. However, discrimination continues to be a problem in many workplaces in New Jersey and throughout the U.S. When an employer allows discrimination to flourish in the workplace, both the employer and the discriminatory actor might be liable in a discrimination lawsuit. Below are four types of discrimination that can occur in the workplace.
Four Types of Workplace Discrimination
Workplace discrimination can take one of the following four forms:
- Direct discrimination
- Indirect or disparate impact discrimination
- Harassment
- Victimization/retaliation
Let’s take a look at each of these types of workplace discrimination below.
1. Direct Discrimination
Direct discrimination occurs when an employer treats an applicant or employee unfavorably based on the applicant’s or employee’s protected characteristics. It can involve discrimination based on the individual’s protected characteristics, the protected characteristics of someone with whom the applicant or employee associates, or the applicant’s or employee’s perceived characteristics even if they don’t possess them.
For example, an applicant might be a victim of discrimination based on their race. They might also be the victim of unlawful discrimination based on their marriage to someone of a minority group. Finally, an applicant or employee might be a victim of discrimination based on the employer’s belief that they are a member of a protected group even if they aren’t.
2. Indirect or Disparate Discrimination
Indirect or disparate discrimination is typically not obvious and is usually unintentional. This type of discrimination occurs when a workplace policy or procedure that is facially neutral has a disparate or indirect discriminatory impact on members of a group of applicants or employees sharing the same protected characteristic.
For example, requiring all applicants to undergo intense physical examinations as a requirement for employment can have a disparate discriminatory impact on certain groups and might not be objectively justifiable when the requirement has no relationship to certain jobs for which they have applied. To defend against a claim of disparate impact discrimination, an employer must show that the policy or procedure was objectively reasonable and related to the duties of the job.
3. Harassment
Harassment is a form of discrimination in which an individual is subject to unwelcome conduct in the workplace based on a protected characteristic. Harassment can occur in two forms, including hostile work environment harassment and quid pro quo harassment.
Hostile workplace harassment is behavior that is so severe or pervasive that it creates a hostile work environment and interferes with the victim’s ability to perform their job duties. Some of the types of conduct that might be considered harassing include bullying, slurs, offensive jokes, unwanted touching, assaults, pornographic displays, and others. Quid pro quo harassment occurs when a supervisor asks an employee for sexual favors as a condition of obtaining a job benefit or avoiding an adverse employment action.
4. Victimization/Retaliation
Victimization in the workplace happens when an employee suffers an adverse job action based on doing any of the following things:
- Complaining about discrimination
- Supporting someone else who has claimed discrimination
- Participating in an investigation into discrimination
- Filing a discrimination charge
Just like workplace discrimination itself is illegal, retaliation against an employee for doing any of the above-listed things is likewise unlawful and can form the basis of a legal claim.
When Is Discrimination Legal?
Discrimination in the workplace against an employee is not always illegal. For example, if a supervisor treats an employee unfavorably simply because they don’t personally like them, that is not illegal even if it might seem unfair. However, this type of behavior in the workplace also shouldn’t be allowed to flourish because it can create a toxic work environment and lead to lowered morale, higher turnover rates, and other problems.
Talk to an Attorney at Swartz Swidler
If your employer has treated you unfavorably, and you believe the treatment was based on your protected characteristics or your exercise of your protected rights, you should talk to an employment attorney at Swartz Swidler. It’s important to reach out quickly because the deadlines for filing discrimination charges are short. Call us today for a free case evaluation at (856) 685-7420.
