Is discrimination in any aspect of employment legal?
Short answer? Discrimination is always illegal, even subconscious and unconscious discrimination. So, employers need to keep a close eye on every policy, procedure, and practice they perform. Whether you deal with prospective, current, or past employees, you cannot discriminate in any aspect of your pre-employment, current employment, or post-employment actions and decisions.
Discrimination is the adverse work treatment of an employee or a prospective employee that is based on a protected class or category of which the employee is a member. This is differentiated from employment treatment that is based on the employee's individual merit, which is how employers should make decisions about any situation related to employment.
In employment, discrimination based on race, color, religion, sex, or national origin is illegal according to Title VII of the Civil Rights Act of 1964.
Types of Employment Discrimination
Workplace discrimination is prohibited by law on the basis of the following characteristics. While state laws may differ—stay up-to-date on your state classifications—federal laws prohibit discrimination in employment for:
- Gender or sex
- Equal pay/Compensation
- National origin
- Genetic Information
- Sexual Harassment
- Sexual Orientation
Discrimination Is Obvious or Hidden in Employment Practices
Employment practices that are considered to be discrimination involve any biased behavior in employee selection, hiring, job assignment, compensation, promotion, employment termination, setting wages and compensation, testing, training, apprenticeships, internships, retaliation, and various types of harassment that are based on these protected classifications.
Discrimination can be obvious or it can be hidden. An example of obvious discrimination is to reject a candidate during your hiring team's debrief meeting because your experience of African Americans is that they don't work very hard. All of your coworkers, when they got over their shock, would call you on this obvious, blatant, discriminatory statement.
However, when discrimination is more likely to occur is silently in the beliefs, attitudes, and values that you apply in your mind to the candidates. You may never say out loud that in your experience, African Americans don't work as hard as whites. But, if you think this and believe this, you'll find another nondiscriminatory way to reject the candidate.
This happens every day in workplaces around the world and you cannot emphasize strongly enough that as managers and HR leaders, you need to avoid this practice. It is wrong on so many levels to allow any prejudices you hold personally to affect the decisions you make in any employment-related situation.
Additional Protections against Discrimination
Additional protections exist against discrimination under federal laws. Protections from discrimination include the following.
- Harassment in employment settings of people based on age, race, color, religion, sex, national origin, disability, or genetic information is prohibited.
- Retaliation against a person for filing a charge of discrimination, participating in an investigation of alleged discrimination, or opposing discriminatory practices is prohibited.
- Employment decisions based on stereotypes or assumptions about people who are included in any of the classifications are prohibited.
- Employment opportunities may not be denied to a person based on their relationship to or association with any individual who is protected under these classifications.
Oversight of Employment Discrimination
These discrimination laws are enforced by the U.S. Equal Employment Opportunity Commission (EEOC). The EEOC also provides oversight, guidelines, and coordination of Federal equal employment opportunity regulations, practices, and policies.
In the instance of a lawsuit filed against an employer, for example, by an employee who is fired for overusing Family and Medical Leave Act (FMLA) intermittent time off, you will most often experience an EEOC lawsuit at the same time. It is easy for an employee or ex-employee to claim that one of the above mentioned protected classifications was violated in conjunction with another lawsuit.
Consequently, you need professional, thorough documentation of any decisions that you make related to job candidates and your current and former employees in the areas listed earlier in this article.
Please note that the information provided, while authoritative, is not guaranteed for accuracy and legality. The site is read by a world-wide audience and employment laws and regulations vary from state to state and country to country. Please seek legal assistance, or assistance from State, Federal, or International governmental resources, to make certain your legal interpretation and decisions are correct for your location. This information is for guidance, ideas, and assistance.