👔Employment Law Unit 2 – Discrimination in the workplace

What is Workplace Discrimination?

• Workplace discrimination involves treating employees or job applicants unfairly based on certain protected characteristics
• Discrimination can occur in various aspects of employment, including hiring, promotion, compensation, job assignments, and termination
• Discriminatory practices create an unfair and hostile work environment, limiting opportunities for affected individuals
• Discrimination can be intentional or unintentional, and it can be carried out by employers, supervisors, co-workers, or even customers
• Workplace discrimination is prohibited by federal and state laws, which aim to ensure equal employment opportunities for all individuals
• Discrimination can have severe consequences for both the affected employees and the employer, including legal action, financial penalties, and reputational damage
• Employers have a legal and ethical responsibility to prevent and address discriminatory practices in the workplace

Types of Discrimination

• Disparate treatment discrimination occurs when an employer intentionally treats an employee less favorably due to a protected characteristic (race, gender)
• Disparate impact discrimination happens when a seemingly neutral policy or practice disproportionately affects a protected group (requiring a high school diploma)
• Harassment is a form of discrimination that involves unwelcome conduct based on a protected characteristic, creating a hostile work environment (sexual harassment, racial slurs)
  • Harassment can be verbal, physical, or visual, and it can be perpetrated by anyone in the workplace
  • The conduct must be severe or pervasive enough to create an intimidating, hostile, or offensive work environment
• Retaliation occurs when an employer takes adverse action against an employee for engaging in protected activities (filing a discrimination complaint, participating in an investigation)
• Failure to accommodate discrimination happens when an employer does not provide reasonable accommodations for an employee's disability or religious beliefs
• Age discrimination involves treating employees or job applicants unfavorably because of their age, particularly those who are 40 years or older
• Genetic information discrimination occurs when an employer uses an individual's genetic information to make employment decisions or treats them unfairly

Legal Framework

• Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex, or national origin
• The Age Discrimination in Employment Act (ADEA) protects individuals who are 40 years of age or older from age-based discrimination
• The Americans with Disabilities Act (ADA) and the Rehabilitation Act prohibit discrimination against qualified individuals with disabilities
• The Equal Pay Act (EPA) requires that men and women receive equal pay for substantially equal work in the same establishment
• The Pregnancy Discrimination Act (PDA) prohibits discrimination based on pregnancy, childbirth, or related medical conditions
• The Genetic Information Nondiscrimination Act (GINA) prohibits discrimination based on genetic information
• Many states and local jurisdictions have additional anti-discrimination laws that provide broader protections than federal laws

Protected Characteristics

• Race and color discrimination involves treating employees unfavorably because of their race or skin color
• National origin discrimination occurs when an employee is treated unfairly due to their country of origin, ethnicity, or accent
• Religious discrimination happens when an employee is treated unfavorably because of their religious beliefs or practices
• Sex discrimination involves treating employees unfairly based on their gender, including sexual harassment and discrimination based on pregnancy or sexual orientation
  • Sexual orientation discrimination occurs when an employee is treated unfairly due to their sexual orientation (gay, lesbian, bisexual)
  • Gender identity discrimination happens when an employee is treated unfavorably because of their gender identity or expression (transgender, non-binary)
• Age discrimination involves treating employees or job applicants unfavorably because of their age, particularly those who are 40 years or older
• Disability discrimination occurs when an employee is treated unfairly due to a physical or mental impairment that substantially limits one or more major life activities

Employer Responsibilities

• Employers must provide a workplace free from discrimination and harassment based on protected characteristics
• Employers should have clear anti-discrimination policies and procedures in place, which should be communicated to all employees
• Employers must promptly investigate any complaints of discrimination or harassment and take appropriate corrective action
• Employers should provide regular training to employees and supervisors on anti-discrimination laws and company policies
• Employers must provide reasonable accommodations for employees with disabilities or religious beliefs, unless doing so would cause undue hardship
• Employers should maintain accurate records of employment decisions and actions to demonstrate compliance with anti-discrimination laws
• Employers must not retaliate against employees who report discrimination, participate in investigations, or oppose unlawful practices

Employee Rights

• Employees have the right to a workplace free from discrimination and harassment based on protected characteristics
• Employees have the right to report discrimination or harassment without fear of retaliation
• Employees have the right to participate in investigations or proceedings related to discrimination complaints
• Employees with disabilities have the right to request reasonable accommodations to perform their job duties
• Employees have the right to equal pay for substantially equal work, regardless of their gender
• Employees have the right to take legal action against their employer if they experience discrimination or harassment
  • This may include filing a complaint with the Equal Employment Opportunity Commission (EEOC) or state fair employment practices agency
  • Employees may also file a lawsuit against their employer in federal or state court
• Employees have the right to be free from discrimination based on their genetic information, including family medical history

Proving Discrimination

• Direct evidence of discrimination includes statements, actions, or policies that explicitly show bias based on a protected characteristic (a supervisor stating they won't hire women)
• Circumstantial evidence involves facts or circumstances that suggest discrimination occurred, even without direct evidence (a pattern of promoting only younger employees)
• Disparate treatment discrimination can be proven by showing that an employee was treated less favorably than similarly situated employees outside the protected class
• Disparate impact discrimination is proven by demonstrating that a facially neutral policy or practice disproportionately affects a protected group and is not job-related or consistent with business necessity
• Statistical evidence can be used to show patterns of discrimination in hiring, promotion, or other employment decisions
• Comparative evidence involves showing that employees outside the protected class were treated more favorably in similar situations
• The burden of proof initially lies with the employee to establish a prima facie case of discrimination, after which the employer must provide a legitimate, non-discriminatory reason for the adverse action

Consequences and Remedies

• Employers found liable for discrimination may be required to pay compensatory damages to the affected employee for lost wages, benefits, and emotional distress
• In cases of intentional discrimination, employers may also be ordered to pay punitive damages to punish and deter future misconduct
• Employers may be required to reinstate or promote the affected employee, or provide front pay if reinstatement is not feasible
• Courts may order employers to implement or revise anti-discrimination policies, provide training, or take other steps to prevent future discrimination
• Employers may be required to pay the affected employee's attorney's fees and court costs
• Discrimination lawsuits can result in significant reputational damage for employers, affecting their ability to attract and retain employees and customers
• Employers who engage in a pattern or practice of discrimination may face additional penalties and oversight from government agencies
• Employees who experience discrimination may also suffer emotional distress, loss of career opportunities, and financial hardship, even if they ultimately prevail in a legal claim