No person deserves to feel unsafe or unwelcome in their place of employment—whether due to racial discrimination, instances of sexual harassment, or unsavory practices. Unfortunately, employment and workplace discrimination continues to occur on a regular basis, with the federal Equal Employment Opportunity Commission (EEOC) receiving 67,448 complaints in 2020 alone. When combined with state and local complaints—as well as the numerous incidents that remain unreported—it is clear that fighting workplace discrimination is an ongoing battle.
Are you concerned that you, someone close to you, or even a coworker have been experiencing workplace discrimination, but are unsure what qualifies? Continue reading for a brief overview of the four primary types of discrimination, as well as several real-world discrimination examples. Then, contact a California workplace discrimination attorney to determine your next steps.
What Is Discrimination and Its Types?
First, it is critical to determine what, exactly, is meant when someone claims “discrimination.” Simply put, discrimination refers to any action or behavior that exclusively targets someone due to a personal characteristic, and treats them unfairly as a result. Discriminatory actions may be based on race, gender, ethnicity, religion, ability, sexual orientation, age, and more. When an individual is facing workplace discrimination, they are judged according to their personal attributes rather than on their professional merits and ability. Notably, workplace discrimination applies to all stages of employment, including the hiring process.
As you might expect, discrimination can exist in a variety of different forms. However, in the workplace, discrimination most frequently occurs as one of four major types.
- Racial discrimination in the workplace. Racial discrimination includes discrimination due to perceived or actual race, skin color, country of national origin, or ethnicity. This discrimination can even include unfair treatment because of a person’s facial features, hair type, or complexion. In some instances, employees may experience discrimination due to their relationship with a person of another race.
- Sex and gender discrimination in the workplace. Any unfair treatment based on an employee’s gender, sexual orientation, or gender identity falls under the category of “sex and gender discrimination.” This could include pregnancy discrimination, as well as discrimination against parents or nursing mothers. In addition, sexual harassment is another form of sex and gender discrimination frequently experienced in the workplace.
- Age discrimination in the workplace. Employees over the age of 40 are a protected class of their own. Legally, an individual cannot be fired, refused a rightful promotion, or pressured into retiring due to their age. Further, it is considered age discrimination to treat individuals over the age of 40 differently than their younger coworkers, purely due to their age or assumed level of ability.
- Disability discrimination in the workplace. Any discrimination against an individual on the basis of ability falls under this category. A wide range of disabilities and limitations are legally protected in the workplace, including hearing, visual, mobility, as well as psychological or mental health-related disabilities. Individuals should never be denied equal employment opportunities, a safe and non-threatening work environment, or equal pay solely on the basis of a disability.
Common Protected Classes
Alongside those four broad categories of workplace discrimination, there are a number of other protected attributes. Groups of people with these attributes are considered “protected classes,” and qualify for special protection under the law. As a result, while anyone can experience unfair treatment, the US EEOC and other governing bodies dictates worker protection from discrimination related to:
- Citizenship status
- National origin or ancestry
- Skin color
- Genetic information
- Physical or psychological disability
- Sex (including gender, gender identity, sexual orientation, and pregnancy status)
- Religion or creed
- Veteran status
What Is an Example of Unfair Discrimination?
While the types of discrimination vary widely, as mentioned above, discriminatory behaviors and actions are even more diverse. Some discrimination examples in the workplace include:
- Inadequate or excessive discipline against particular employees. In some instances of discrimination, an employer may respond to minor infractions with unfairly harsh or unnecessary discipline due to an individual’s protected characteristic. Sometimes, this is done in order to build a paper trail against the victim, eventually resulting in their termination.
- Fixed roles within the workplace. Some discriminatory situations result from fixed roles established within the workplace. For example, an employer may grant managerial positions exclusively to male employees while women are restricted to secretarial roles regardless of qualifications, ability level, or experience. These instances are often revealed when a number of qualified members of the protected class apply for a position, but are denied in favor of a less qualified member of the preferred class.
- Restricting diversity in the workplace. An employer hiring individuals of a particular gender, race, age, or sexual orientation often qualifies as discrimination. In particular, when people in protected classes apply for a position but are not hired despite any qualifications and experience they may have, the employer may be engaging in discriminatory hiring practices. Remember, discrimination can occur at any stage in the hiring and employment process.
- Regular occurrences of demeaning communication. By no means should a supervisor regularly belittle employees, make offensive jokes, or make other forms of inappropriate comments, especially when the comments or employees targeted pertain to one of the above protected classes. When this occurs, it can lead to a toxic and uncomfortable work environment for those affected. While a single incident may not constitute workplace harassment or discrimination, ongoing behavior can certainly qualify.
- Assigning a negatively inconsistent workload. Another method of discrimination is to unfairly limit or restrict key responsibilities, diminishing the employee’s perceived skill level, pay, promotability, and more. The employer may also give the individual an excessive workload or tasks that are impossible for them to complete. Typically, this is a strategy to have a protected employee unfairly terminated from their position.
Direct Versus Indirect Discrimination
Many of the workplace discrimination examples listed above involve employers taking deliberate discriminatory actions against their employees. However, discrimination does not need to be intentional to affect employees negatively. As a result, any of the four major types of discrimination can occur in a direct or indirect manner.
In instances of direct discrimination, an individual is explicitly treated differently, often worse than their peers, due to a personal attribute. The targeted attribute can be any attribute shared by a protected class, including race, sex or gender, age, and disability.
Direct discrimination can be further broken down into three potential categories, including:
- Ordinary direct discrimination. In these instances, an employee is treated differently or unfairly due to their own protected characteristics.
- Direct discrimination by association. Discrimination can also occur based on the individuals a person associates with. If an employee receives unfair treatment due to a protected characteristic possessed by another person—perhaps a spouse, parent or child—discrimination by association may have occurred.
- Direct discrimination by perception. Discrimination does not only occur due to confirmed traits or characteristics possessed by an individual. Perpetrators may assume a person holds an attribute, whether justly or unjustly, and then discriminate against them because of the perceived attribute. If an employee is treated differently or unfairly due to a protected characteristic they are assumed to possess, that individual is experiencing discrimination by perception.
Workplace discrimination can also be indirect in nature. This type of discrimination is typically much more subtle than direct discrimination, and is thus usually more difficult to identify. To complicate the situation further, indirect discrimination is often unintentional.
As mentioned, indirect discrimination often results from a rule or policy established within the workplace. The rule or policy may apply to all employees in the workplace, but puts individuals with certain characteristics at a disadvantage. For example, if a new policy requires all employees to work on Saturdays to achieve a particular bonus but Jewish employees whose religion prohibits them from working on the Sabbath cannot participate, the policy is indirectly discriminatory. While the policy may not appear outwardly discriminatory or intentional, it puts a group or individual employee at a particular disadvantage.
Who Is Liable For Workplace Discrimination?
Whether direct, indirect, intentional, or unintentional, workplace discrimination can occur at the hands of anyone within the workplace. In fact, it is possible to be discriminated against by either a supervisor, employer, or fellow employee. No one in the workplace has the right to discriminate against anyone else, no matter their position within the workplace.
Many workers experiencing workplace discrimination choose to pursue a discrimination claim against the responsible parties. However, the courts must determine which parties to hold liable—that is, which party is responsible for the discrimination under the law—and whether they must provide compensation to the mistreated worker. For these purposes, liability for workplace discrimination can occur on a direct or vicarious basis.
Instances of direct liability for discrimination occur because of the employer’s own acts, and are typically easiest to identify. In these situations, an employer may establish a top-down structure of discrimination, usually impacting a number of employees. Due to the scale, cases of employment discrimination are more likely to grow obvious over time, and are thus simpler to litigate in court. Employers may hold direct liability for discriminatory hiring practices, unfair benefits, discriminatory retention policies, and more.
Vicarious liability, however, can be more complicated to identify and prove. If one employee—often a manager or supervisor—discriminates against another employee based on their personal characteristics and the employer was aware of their actions but did not remedy the situation, the employer may hold vicarious liability. While the employee is responsible for their own actions, employers are responsible for the actions of their employees on the job and must take reasonable care to prevent actions that could harm other employees. Thus, they may be held liable for employees that take unlawful, discriminatory actions against others. A California workplace discrimination attorney can help you determine which parties are liable for discriminatory actions in your workplace.
What Should You Do if You’re Experiencing Workplace Discrimination?
If you believe you, a loved one, or a coworker are experiencing workplace discrimination, you might be unsure where to begin or feel tempted to accept the situation to avoid conflict. Workplace discrimination is a serious crime, and you should never feel as though you must manage discrimination on your own.
If you are experiencing discrimination in your place of employment, take these important steps:
- Keep a thorough record of the discriminatory behavior. Make sure you are regularly recording the date, time, location, and the names of any witnesses to the discrimination. In your notes, describe exactly what has occurred and the effects of the actions.
- Notify management or HR. Informing a manager of discriminatory behavior triggers an investigation and allows your employer to address the situation. However, if the behavior continues despite complaints or attempts to mitigate, or occurs on the part of your employer, you may need to proceed with another report.
- Make a formal complaint. If internal reports do not stop the discriminatory behavior, you may need to file a complaint with the California EEOC or DFEH (Department of Fair Employment and Housing). If you face retaliation from the person you’ve accused, make note of these instances, as well.
- Protect your rights by hiring an experienced workplace discrimination attorney. It is critical to ensure your official complaint is carefully written to provide as much documentation as possible and to ensure your claim is legally sound. To ensure a legal claim, or if you are facing retaliation or a lack of response, consult a workplace discrimination attorney.
Know Your Rights — California Employment Counsel, APC is On Your Side
If you are facing discrimination in the workplace in any form, you are protected by both California state and federal law. At California Employment Counsel, our top priority is helping workers feel safe in the workplace. Never feel as if taking action is not an option—our experienced attorneys are always here and ready to get you the justice you deserve.
Whether you have experienced workplace discrimination, sexual harassment, or other workplace harassment at work, our attorneys can help you develop a strong legal basis for your claim. To schedule a consultation contact California Employment Counsel, APC today.