Knowing what Constitutes Employment Discrimination in the Workplace
This article is a short introduction to employment discrimination law for both employers and employees. I will describe, from a legal perspective, what constitutes discrimination in the workplace.The term "discrimination" is widely used today to describe any behavior that might cause one to feel unfairly singled out. However, contrary to popular opinion, the law in the United States does not require employers to treat employees in accordance with any subjective standard of fairness. In fact, the law grants employers broad authority to manage their employees in whatever manner best serves the employer's interests. That is the general rule.Nevertheless, there are limits. Lawyers use the term "employment discrimination" to refer to conduct that (1) constitutes a serious disadvantage to the employee's terms, conditions, or benefits of employment, and (2) is motivated by the employee's race, sex, or other protected class status.A "protected class" is a forbidden category of discrimination. Federal law currently forbids employment discrimination on the basis of race, color, sex, religion, age, national origin, or disability. "Race" refers to all races. "Color" refers to the hue of one's skin. "Age" refers to persons aged 40 and older (i.e. it is not illegal to discriminate against someone on the basis of age unless that person was 40 years of age or older). "National origin" refers to the nation of one's birth or one's ancestors' birth. "Disability" refers to an extremely severe physical or mental impairment, a record of such an impairment, or a severe impairment that an employer wrongly believes an employee to have.Note that discrimination on the basis of pregnancy counts as sex discrimination, as does (in some cases) discrimination against an employee because his or her behavior is perceived to be inappropriately masculine or effeminate. On the other hand, employers are allowed to have distinct dress codes for men and women, and discrimination based upon actual or perceived homosexual behavior does not count as sex discrimination, but rather falls under the separate protected category of "sexual orientation." Federal law does not presently prohibit discrimination based upon sexual orientation, but some states do, and it is probable that, during the Obama administration, Federal law will be amended to include sexual orientation as a new protected class.Additionally, if an employee complains to the Federal Equal Employment Opportunity Commission (or equivalent state or local agency) about discrimination, or participates in official proceedings related to a discrimination complaint, the employer may not retaliate against the employee. The law also forbids employers from retaliating against employees who complain about perceived illegal discrimination at work, though this protection can be very narrow in some situations.Workplace disadvantages that are serious enough to violate the law fall into three broad categories: (1) adverse employment actions; (2) hostile work environments; and (3) refusals of legally-required accommodations.An adverse employment action occurs when an employer takes some action that directly, negatively impacts an employee's pay, benefits, or, in some instances, working conditions. For example, firings, demotions, refusals to hire, denials of promotions, pay cuts, and denials of bonuses or pay increases constitute adverse employment actions. On the other hand, transfers, changes in work hours, the stripping or removal of job duties, refusals of opportunities to receive training or to attend conferences, and poor performance evaluations may or may not constitute adverse employment actions depending on the specific circumstances.Note that incidents of rude or insulting behavior by supervisors or coworkers never constitute adverse employment actions, but (as described below) might constitute evidence of a hostile work environment. Additionally, note that one's own resignation does not constitute an adverse employment action except in an extremely narrow situation that lawyers call "constructive discharge." If you believe that you have been (or are about to be) discriminated against, never resign your employment without first consulting an employment lawyer. You could inadvertently ruin your legal claim by resigning.The term "hostile work environment" describes a situation where an employee's supervisor or coworkers (or, in some circumstances, customers) treat him or her so outrageously badly that the behavior, in and of itself, is tantamount to an adverse employment action. A claim for a hostile work environment is also known as a claim for "harassment."However, as with the term "discrimination," lawyers use the term "harassment" more narrowly than do members of the general public. In common parlance, "harassment" describes any sort of behavior that one regards as disrespectful. A court, however, will not find disrespectful behavior to violate the law unless it is extremely severe and/ or occurs frequently or over an extended period of time.How bad is bad enough? As a general rule, one or two incidents of nasty behavior cannot create a hostile work environment unless they involve physical abuse, such as a beating or a sexual assault. One or two incidents of racial slurs will not violate the law, nor will one or two vulgar sexual advances. On the other hand, two or three racial slurs a week over a period of several months will likely constitute a hostile work environment, particularly if the employee promptly reports the slurs and management fails to take any corrective action.The term "sexual harassment" frequently refers to a hostile work environment where the harasser was motivated (at least in part) by sexual lust towards the victim. "Sexual harassment" could also refer to an adverse employment action (such as a termination) taken by a manager against an employee who refused to yield to his or her sexual advances. This is sometimes called "quid pro quo" sexual harassment.I must emphasize that neither adverse employment actions nor hostile work environments are illegal unless the person responsible was motivated by the employee's protected class status. Unless someone admits to such a motive (which is rare), it is usually very difficult to prove discrimination. On the other hand, it is often easier to prove discriminatory motives in harassment cases because the nature of the harassment itself may demonstrate the motive. For example, a racial motive is obvious where a worker addresses another worker using a racial slur.Both adverse employment actions and hostile work environments are situations where the employer mistreats (or permits others to mistreat) the employee. However, there are also situations where the employer is required to not only refrain from mistreating the employee, but to provide the employee with a special benefit that is not extended to others. This is called a "reasonable accommodation."Federal law requires reasonable accommodations in two general situations. The first is where a work requirement conflicts with the employee's religious belief and the employer could modify the requirement or excuse the employee from the requirement with little or no difficulty or expense. The most common religious accommodation claims involve employees who want to be excused from work on sabbaths or other religious holidays, who want breaks in order to pray at specific times, or who want to dress in a way that is required by their religion but that differs from their employer's usual dress code. There are also religious accommodation claims where the employee wants to be excused from selling products, such as birth control pills, that are forbidden by the employee's religion.The second situation involves a disabled employee who would be capable of doing a particular job if provided with some sort of extra assistance, such as a wheelchair ramp or the installation of text-to-speech software on his or her computer. Depending on the specific circumstances, the employer might be legally required to provide the assistance, even at considerable expense.Courts decide reasonable accommodation claims on a case-by-case basis, so it can be very difficult to predict in advance how the case will turn out. Wise employers will attempt to reach an agreement with the employee before going to court. Employees should bear in mind that a court will seldom excuse them from obeying an employer's work rule unless they notified management of their need for a reasonable accommodation in advance. For example, it is usually legal to discipline an employee for not showing up to work on a religious holiday when the employee has not notified the employer that his or her religion forbids work on that holiday. Additionally, an employer may not be obligated to agree to the precise accommodation that the employee wants.Finally, all employers should have attorneys review their workplace policies and procedures and obtain advice about how best to minimize their exposure to liability for employment discrimination. It is also a very good idea for an employer to obtain an employment practices liability insurance policy.
This article is a short introduction to employment discrimination law for both employers and employees. I will describe, from a legal perspective, what constitutes discrimination in the workplace.
The term "discrimination" is widely used today to describe any behavior that might cause one to feel unfairly singled out. However, contrary to popular opinion, the law in the United States does not require employers to treat employees in accordance with any subjective standard of fairness. In fact, the law grants employers broad authority to manage their employees in whatever manner best serves the employer's interests. That is the general rule.
Nevertheless, there are limits. Lawyers use the term "employment discrimination" to refer to conduct that (1) constitutes a serious disadvantage to the employee's terms, conditions, or benefits of employment, and (2) is motivated by the employee's race, sex, or other protected class status.
A "protected class" is a forbidden category of discrimination. Federal law currently forbids employment discrimination on the basis of race, color, sex, religion, age, national origin, or disability. "Race" refers to all races. "Color" refers to the hue of one's skin. "Age" refers to persons aged 40 and older (i.e. it is not illegal to discriminate against someone on the basis of age unless that person was 40 years of age or older). "National origin" refers to the nation of one's birth or one's ancestors' birth. "Disability" refers to an extremely severe physical or mental impairment, a record of such an impairment, or a severe impairment that an employer wrongly believes an employee to have.
Note that discrimination on the basis of pregnancy counts as sex discrimination, as does (in some cases) discrimination against an employee because his or her behavior is perceived to be inappropriately masculine or effeminate. On the other hand, employers are allowed to have distinct dress codes for men and women, and discrimination based upon actual or perceived homosexual behavior does not count as sex discrimination, but rather falls under the separate protected category of "sexual orientation." Federal law does not presently prohibit discrimination based upon sexual orientation, but some states do, and it is probable that, during the Obama administration, Federal law will be amended to include sexual orientation as a new protected class.
Additionally, if an employee complains to the Federal Equal Employment Opportunity Commission (or equivalent state or local agency) about discrimination, or participates in official proceedings related to a discrimination complaint, the employer may not retaliate against the employee. The law also forbids employers from retaliating against employees who complain about perceived illegal discrimination at work, though this protection can be very narrow in some situations.
Workplace disadvantages that are serious enough to violate the law fall into three broad categories: (1) adverse employment actions; (2) hostile work environments; and (3) refusals of legally-required accommodations.
An adverse employment action occurs when an employer takes some action that directly, negatively impacts an employee's pay, benefits, or, in some instances, working conditions. For example, firings, demotions, refusals to hire, denials of promotions, pay cuts, and denials of bonuses or pay increases constitute adverse employment actions. On the other hand, transfers, changes in work hours, the stripping or removal of job duties, refusals of opportunities to receive training or to attend conferences, and poor performance evaluations may or may not constitute adverse employment actions depending on the specific circumstances.
Note that incidents of rude or insulting behavior by supervisors or coworkers never constitute adverse employment actions, but (as described below) might constitute evidence of a hostile work environment. Additionally, note that one's own resignation does not constitute an adverse employment action except in an extremely narrow situation that lawyers call "constructive discharge." If you believe that you have been (or are about to be) discriminated against, never resign your employment without first consulting an employment lawyer. You could inadvertently ruin your legal claim by resigning.
The term "hostile work environment" describes a situation where an employee's supervisor or coworkers (or, in some circumstances, customers) treat him or her so outrageously badly that the behavior, in and of itself, is tantamount to an adverse employment action. A claim for a hostile work environment is also known as a claim for "harassment."
However, as with the term "discrimination," lawyers use the term "harassment" more narrowly than do members of the general public. In common parlance, "harassment" describes any sort of behavior that one regards as disrespectful. A court, however, will not find disrespectful behavior to violate the law unless it is extremely severe and/ or occurs frequently or over an extended period of time.
How bad is bad enough? As a general rule, one or two incidents of nasty behavior cannot create a hostile work environment unless they involve physical abuse, such as a beating or a sexual assault. One or two incidents of racial slurs will not violate the law, nor will one or two vulgar sexual advances. On the other hand, two or three racial slurs a week over a period of several months will likely constitute a hostile work environment, particularly if the employee promptly reports the slurs and management fails to take any corrective action.
The term "sexual harassment" frequently refers to a hostile work environment where the harasser was motivated (at least in part) by sexual lust towards the victim. "Sexual harassment" could also refer to an adverse employment action (such as a termination) taken by a manager against an employee who refused to yield to his or her sexual advances. This is sometimes called "quid pro quo" sexual harassment.
I must emphasize that neither adverse employment actions nor hostile work environments are illegal unless the person responsible was motivated by the employee's protected class status. Unless someone admits to such a motive (which is rare), it is usually very difficult to prove discrimination. On the other hand, it is often easier to prove discriminatory motives in harassment cases because the nature of the harassment itself may demonstrate the motive. For example, a racial motive is obvious where a worker addresses another worker using a racial slur.
Both adverse employment actions and hostile work environments are situations where the employer mistreats (or permits others to mistreat) the employee. However, there are also situations where the employer is required to not only refrain from mistreating the employee, but to provide the employee with a special benefit that is not extended to others. This is called a "reasonable accommodation."
Federal law requires reasonable accommodations in two general situations. The first is where a work requirement conflicts with the employee's religious belief and the employer could modify the requirement or excuse the employee from the requirement with little or no difficulty or expense. The most common religious accommodation claims involve employees who want to be excused from work on sabbaths or other religious holidays, who want breaks in order to pray at specific times, or who want to dress in a way that is required by their religion but that differs from their employer's usual dress code. There are also religious accommodation claims where the employee wants to be excused from selling products, such as birth control pills, that are forbidden by the employee's religion.
The second situation involves a disabled employee who would be capable of doing a particular job if provided with some sort of extra assistance, such as a wheelchair ramp or the installation of text-to-speech software on his or her computer. Depending on the specific circumstances, the employer might be legally required to provide the assistance, even at considerable expense.
Courts decide reasonable accommodation claims on a case-by-case basis, so it can be very difficult to predict in advance how the case will turn out. Wise employers will attempt to reach an agreement with the employee before going to court. Employees should bear in mind that a court will seldom excuse them from obeying an employer's work rule unless they notified management of their need for a reasonable accommodation in advance. For example, it is usually legal to discipline an employee for not showing up to work on a religious holiday when the employee has not notified the employer that his or her religion forbids work on that holiday. Additionally, an employer may not be obligated to agree to the precise accommodation that the employee wants.
Finally, all employers should have attorneys review their workplace policies and procedures and obtain advice about how best to minimize their exposure to liability for employment discrimination. It is also a very good idea for an employer to obtain an employment practices liability insurance policy.
