By: Akanksha A. Panicker
Discrimination is when unjustified distinctions are made about individuals that harm their lives. There are roughly four types of discrimination in the workplace, classified as [A.] direct discrimination, [B.] indirect discrimination [C.] harassment, and [D.] victimization.
There is a difference in the pervasive degree of these forms of discrimination, although they are all prohibited by law. Direct discrimination is overt and refers to when an individual is treated worse than another employee due to an underlying reason affiliated to their age, race, religion, sex, or beliefs. The emotions of the victim indirect discrimination are key, regardless of their emotion.
Indirect discrimination is less obvious and more centered around micro-aggressions. Indirect discrimination sees the impact of employment policies, especially when it puts people with specific characteristics at a disadvantage. However, harassment is the most overt form of negative workplace behavior, often actively violating an individual’s dignity. Bullying and inappropriate behavior intended to oust the individual from a peaceable workplace is harassment and highly illegal.
Finally, victimization is when the individual has prejudicial treatment against them for reporting discrimination in good faith. This often brands an individual as a ‘troublemaker’ and can often lead to being passed over for promotions and job benefits.
[1.0] TYPES OF DISCRIMINATION
[1.1] AGE DISCRIMINATION
The Age Discrimination in Employment Act of 1967, as amended, protects individuals who are 40 years of age and older from employment discrimination based on age. Under this Act, it is unlawful to discriminate against a person because of his/her age concerning any term, condition, or privilege of employment.
The harassment of an individual based on their age is explicitly condemned under the act. This could involve offensive or derogatory remarks about the individual’s age and extends to unfair discriminatory policies against individuals over forty that are based exclusively on age and no other factor. While simple teasing and offhand comments are not barred, even isolated incidents can lead to a hostile or offensive work environment. When adverse employment decisions are taken against the victim that prevents them from having an equal chance at promotions or retaining their job, ageism is extremely prominent.
Harassment need not merely be with a supervisor or a co-worker. Individuals who are not an employee of the employer and exist in a client-customer relationship with the victim can also be discriminatory.
[1.1] DISABILITY DISCRIMINATION
The Americans with Disabilities Act and the Rehabilitation deal with disability discrimination., the latter addressing the unfair treatment of a qualified individual with a disability merely because of the disability. However, discrimination can also occur by way of unfavorable treatment of an applicant or employee with a history of disability. If a covered employer mistreats this individual because of an allegedly non-transitory illness or a history of disability, it is considered to fall under the scope of discrimination. This is especially so considering the requirement of a reasonable accommodation to an employee or job applicant with a disability expected from an employer, with only significant difficulty or expense for the employer (“undue hardship”) considered as a defense.
The ADA prohibits discrimination in all employment practices from the very initiation. Consequently, procedures ranging from job application procedures to hiring, firing, training, compensation, and advancement.
While leeway is provided to select the most qualified applicant for the position, discrimination based on the candidate’s real or perceived disability is prohibited. However, the same safeguards have often come under fire for their under-reportage, although the Act itself is expansive in its scope. In fact, the 2008 Amendment to the Act itself changed the definition of disability, wherein the construction was considered in favor of wider coverage of individuals to the maximum extent permitted by the terms of the ADA not subject to in-depth analysis, allowing an individual under the ADA to feel more comfortable in seeking protection without having to establish the disability without a doubt.
[1.3] SEXUAL ORIENTATION
As a background, the landmark cases of Bostock v. Clayton County, Georgia and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (2020) were responsible for unifying LGBTQIA+ protection, wherein harassment and bias was no longer dependent on the area and the public nature of the employment. While the Equal Employment Opportunity Commission (EEOC) had interpreted Title VII to cover LGBT employees before Bostock, it was only extended to cover sexual orientation in 2015.
LGBT employment discrimination in the United States is illegal under Title VII of the Civil Rights Act of 1964. Employment discrimination based on sexual orientation or gender identity is encompassed by the law’s prohibition of employment discrimination based on sex.
[1.4] STATUS AS A PARENT
Status as a parent is protected for any individual who is under the age of 18. However, this also covers any adult over eighteen incapable of self-care because of a disability or biological, adoptive, foster, or step-parent. A parent’s status, a custodian of a legal ward, in loco parentis over such an individual, or actively seeking legal custody or adoption of such an individual is also protected.
The protection of individuals based on their marital status in the federal government is covered under the Civil Service Reform Act of 1978. Essentially, this covers employment discrimination based on conduct that does not affect the employee’s performance, though it does not fall under the jurisdiction of the EEO. Consequently, the protections against federal employee discrimination have a stronghold with the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB.)
[1.5] RELIGIOUS DISCRIMINATION
The individual’s right to free exercise of a chosen religion consequently requires protection to do so. The primary statute that defends religion and civil rights law is Title VII of the Civil Rights Act of 1964, wherein private employers are prohibited from treating individuals differently based on race, color, religion, sex, or national origin.
A highly explicit means of discrimination is disparate treatment, wherein unequal treatment on religious grounds is immediately observable. Employers who refuse to hire or promote individuals of a particular religion are an example of this. Though employers in a religious field might be excused for the same, the business’s legitimacy needs to be evaluated by the courts.
More insidiously, an employer can discriminate by the disparate impact. The unequal treatment of religions is not overt and comes up through policies that affect only certain religious groups. A strict dress code that would prevent individuals from wearing their religious symbols would be an example of this. An employer can also maintain a hostile environment for employees, wherein an abusive work environment is created when co-workers harass an employee based on their faith. While arguments about religion do not fall in this category, severe insults and pervasive actions meant to harass the employee are culpable and the employer’s responsibility.
Title VII of the Civil Rights Act of 1964 also requires employers to reasonably accommodate an employee or prospective employee’s religious practices unless doing so would create an undue hardship on the employer. This would mean that the employee uses up more than administrative costs and is unreasonable in its ambit. However, mere flexible scheduling to accommodate religious times or change the shift hours would not be considered an undue hardship. It must be remembered that religion is not limited to traditional denominations.
[1.6] NATIONAL ORIGIN
Discrimination based on the individual’s birthplace, ancestry, culture, or linguistic characteristics common to a specific ethnic group, including their accent or manner of speaking, is prevented. However, in situations where the employee’s manner of speaking is actively detrimental to their work, the investigation must be undertaken to prove the legitimate reason for the action taken in the context of the employee’s qualifications. Ethnic slurs and verbal or physical confrontation are all illegal, though even unreasonable interference in the performance of the employee’s job is considered a hostile or offensive working environment.
Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination based on national origin and race, color, religion, and sex.
[1.7] PREGNANCY AND SEXUAL HARASSMENT
An amendment to Title VII of the Civil Rights Act of 1964 prevented discrimination based on pregnancy, childbirth, or related medical conditions. Essentially, the temporary inability to perform the duties of employment due to pregnancy means that the agency must treat the individual in the same manner as any other temporarily disabled individual. Complications that arise from pregnancy (gestational diabetes) may be disabilities under the Americans with Disabilities Act (ADA).
Maternity leave plans come within this ambit, and any employer who allows disability leave or leaves without pay must allow pregnancy the same under the ADA. However, the Family and Medical Leave Act of 1993 specifies twelve weeks of leave to care for the child, though it requires work to be accrued for twelve months before leaving. This might also be conditional on the number of employees that the individual has.
Unwelcome advances of a sexual nature is a crime. A quid pro quo trade-off for a tangible employment action or benefit for a sexual favor is a typical form of sexual harassment utilized by higher-ups on the corporate ladder. However, a hostile work environment caused by obvious sexually-oriented activity is an additional form of sexual harassment that discourages the individual from working with the same employer.
Sexual harassment can be a one-off event, though it is most commonly a built-up series of situations. The victim and the harasser might be of any sex, and only the opposite sex doesn’t need to harass the victim sexually. Additionally, reportage of the harassment need not be by the victim alone. An observer is qualified to report harassment. Harassment does not have to be of a sexual nature and can include offensive remarks about a person’s sex. Sexual harassment training should be incorporated into the workplace to prevent the same.
[1.8] RACE AND COLOR-BASED DISCRIMINATION
Racial discrimination is when unalterable characteristics like the physical features attributed to a race cause employees to be treated differently. This differs from color discrimination, wherein the skin pigmentation of an individual causes disparate treatment, sometimes within the same ethnic group. This might even occur when the person is married to (or associated with) a person of a certain race or color and receives unequal treatment for the same.
Harassment can include racial slurs, offensive or derogatory remarks about a person’s race or color, or the display of racially offensive symbols. Title VII of the Civil Rights Act of 1964 protects individuals against employment discrimination based on race and color and national origin, sex, or religion.
[1.9] SEX-BASED DISCRIMINATION
Sex discrimination involves treating someone (an applicant or employee) in a manner that is not favorable towards them based on their sex. This includes all gender identities, sexual orientation, and transgender status as protected under Title VII. It is characterized when individuals of a similar situation are treated differently based on gender through unsolicited or deliberate comments or actions that are actively detrimental to the victim’s status in the organization and can also occur when an organization’s policy has a disproportionate adverse impact on a person or group based on gender.
The treatment could be a one-off action or could be caused by a rule or policy and does not have to be intentional to be unlawful. The direct form of discrimination in this instance would be an overt and explicit preference. However, indirect harassment by a particular policy or way of working puts the individual at a disadvantage because their sex is prohibited.
[1.1.0] DISCRIMINATION ON BASIS OF RETENTION
Retaliation is a discriminatory or adverse action made against a person who files a complaint or charge, participates in an investigation or charge, or opposes an employment practice made illegal by any of the statutes. The EEO protects retaliatory action against the individual. Consequently, actions like denial of a promotion or job benefits or vindictive suspension and discharge are illegal under the same.
However, being a federal whistle-blower sees protection only under the NoFEAR Act. Union activity is not a protected activity. Retaliation manifests in both subtle and overt ways. Consequently, it is necessary to keep an open eye for indicators of the same. Employees should be able to report illegal activities or report discrimination without fearing for their job security. It’s also illegal to retaliate against employees for taking leave under the Family Leave Act (FMLA) or asking for pay that’s warranted under the Fair Labour Standards Act (FLSA).
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1. Age Discrimination in Employment Act of 1967 (ADEA; 29 U.S.C. § 621 to 29 U.S.C. § 634)
2. Americans with Disabilities Act of 1990 or ADA (42 U.S.C. § 12101)
3. The Rehabilitation Act of 1973, (Pub.L. 93–112, 87 Stat. 355, enacted September 26, 1973),
4. Bostock v. Clayton County, 590 U.S. ___ (2020),
5. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, 590 U.S. ___ (2020)
6. Family and Medical Leave Act of 1993 29 U.S.C. 2601, et seq.
7. Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 Public Law 107–174.
8. Fair Labor Standards Act of 1938 29 U.S.C. § 203