Employment discrimination isn’t always illegal. In fact, you are free to discriminate against people who come in late, people who are unqualified, and people who insist on wearing socks with sandals. Illegal employment discrimination is limited to just a handful of classifications
The Federal Civil Rights Law (known as Title VII) prohibits employment discrimination on the basis of race, color, gender, national origin, and religion. You’ll note that sexual orientation is not explicitly listed.
However, the courts are divided as to whether or not sexual orientation falls under gender discrimination, and in some states and cities, it is clear that discrimination on the basis of sexual orientation is illegal. Regardless, you should consider discrimination on the basis of sexual orientation illegal.
In addition to Title VII discrimination, pregnancy, disability, association with someone who has a disability, and genetic information are all protected under federal law.
Employment Discrimination Lawsuits Are Rising Rapidly
The EEOC reported that employment discrimination lawsuits are on the rise and have been for several years. The FY 2019 data show that retaliation continued to be the most frequently filed charge, followed by disability, race, and sex. The agency also received 7,514 sexual harassment charges that made up 10.3% of all charges and a 1.2% decrease from FY 2018.
"Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:
- "Retaliation: 39,110 (53.8 percent of all charges filed)
- "Disability: 24,238 (33.4 percent)
- "Race: 23,976 (33.0 percent)
- "Sex: 23,532 (32.4 percent)
- "Age: 15,573 (21.4 percent)
- "National Origin: 7,009 (9.6 percent)
- "Color: 3,415 (4.7 percent)
- "Religion: 2,725 (3.7 percent)
- "Equal Pay Act: 1,117 (1.5 percent)
- "Genetic Information: 209 (0.3 percent)
"These percentages add up to more than 100% because some charges allege multiple bases."
So, why are employment discrimination cases increasing so rapidly? Here are four theories:
1. Increased Awareness
If you don’t know something is illegal, you won’t file a legal complaint about it. The original discrimination laws were passed more than 50 years ago, and yet not everyone knows their rights even today. As more people learn, they can recognize when a boss or coworker behaves illegally.
Additionally, as employers increase training programs designed to prevent discrimination and harassment, people recognize harassment they faced in the past.
Increased awareness doesn’t indicate an increase in actual bad behavior. It merely indicates that more people are aware of their rights. Hopefully, as awareness increases, more people will understand their responsibilities as well, and actual cases will decrease over time.
2. Increased Coverage
This goes along with increased awareness. As people see reports of discrimination in the news, they realize that they are not alone, and there is something they can do about it. You will find frequent articles in outlets such as "The Washington Post," "The New York Times, "The Los Angeles Times" and other mainstream media so the concept of discrimination is in the public eye.
This is also bolstered by the fact that diversity, inclusion, and movements such as Black Lives Matter are in the news every day. If you are reading these headlines every day, even if you don’t read the articles, you can infer that discrimination is everywhere, and it brings up questions.
For instance, if it’s racial discrimination to have a certain dress code at a restaurant, is it also racial discrimination to have a certain dress code at your office? You may not have considered that as a possibility before.
The other thoughts these headlines spark is the idea of a big financial gain. The Missouri prison worker who won $1.5 million is not a usual case. Most discrimination cases don’t result in big payouts, but if you think that you might have a big winner of a case, you may be more willing to file a lawsuit.
3. Social Media
In the past, you could complain to a few friends, complain to HR, and maybe hire a lawyer, and that was it. Today, if you can get a tweet or a Facebook post to go viral, you have a huge audience. Everyone can become their own public relations firm today.
You can find out about harassment and discrimination cases that happened across the country (or the world) to people you have never met and knew nothing about until a viral post landed in your social media feeds. This can encourage people to feel like they are not alone. It can also put pressure on companies and organizations to change their behavior.
4. Employer Panic
Employers are reading the same headlines and attending the same training classes that employees do. The number one reason for a discrimination lawsuit in 2019 as cited earlier, was “retaliation.” Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.
Employers know that they can face serious consequences for violating discrimination laws. In an attempt to make the problem “go away” they can retaliate against employees by punishing them for complaining.
For instance, Karen complains that her boss, Bob, is harassing her, and the company moves her to a new position with less prestige. Or, Javier’s boss tells him to stop speaking Spanish on break. When Javier refuses, his boss gives him a lower performance rating. Heather goes on maternity leave, and when she comes back, she found that her boss has given all of her best clients to other employees.
All of these are examples of retaliation, and companies often retaliate in panic or denial. The idea is, that if you can just shut up the complainer, the problem will go away. Sometimes this works, as people would rather find a new job and leave than fight it out with a lousy employer, but if they decide to sue, the employer gets hit with a retaliation charge.
Does This Increase in Employment Discrimination Cases Mean You Should Sue?
If you’ve been illegally discriminated against, you certainly have the right to your day in court. You can file a complaint with the EEOC, or you can hire an employment attorney. But, keep in mind that winning an employment discrimination lawsuit is difficult and expensive.
Of those cases that make it to court, the employee wins in only 1 percent of the cases. While that sounds dreadful and hopeless, keep in mind that most cases settle out of court. Many are sealed, so you have no idea how much money if any, the employee received. But, huge sums are not common, and you have to pay your lawyer as well unless the EEOC takes your case.
Cases can also take years to work their way through the courts, during which time you are under stress. It’s often logical to just walk away. However, this does not mean that you should let harassment and discrimination go.
The Bottom Line
Everyone needs to make his or her own choice. But it does mean that you need to be careful about how you act in the workplace. People won’t stand for illegal discriminatory behavior anymore. And that’s a good thing.
Suzanne Lucas is a freelance journalist specializing in Human Resources. Suzanne's work has been featured on notes publications including "Forbes," "CBS," "Business Insider," and "Yahoo."