Avoiding Workplace Discrimination

Last Updated May 2, 2007 7:12 PM EDT

The cost of claims brought by employees against their employers has skyrocketed over the past 20 years. Lawsuits in the United States claiming discrimination by employers have increased by 2,200%, and a fifth of these lawsuits relate to workplace incidents.

These statistics should prevent employers from thinking it could not happen to them. For the small to medium-sized business that may not be insured against such eventualities, a lawsuit could jeopardize future viability and result in the business closing entirely or going into bankruptcy.

Reasons for the increase in lawsuits include:

  • an increased awareness of rights;
  • a series of large, well-publicized payouts;
  • easy access to information, advice, and legal representation;
  • large financial awards (although some states are trying to limit the size of these awards)
  • increased awareness of the right to claim compensation for "emotional distress"
  • increasingly strict legislation for employers
What You Need to KnowSo should I avoid all banter (especially if I'm a man) for fear of litigation?

Sexual harassment is usually taken to mean unwelcome physical, verbal or nonverbal conduct of a sexual nature. This includes comments that recipients find demeaning or offensive, intrusive questions about their sex life, sexual requests, or any behavior that is intimidating, hostile, or humiliating. The essential characteristic of sexual harassment is that it is unwanted by the recipient. However, never assume that the absence of an objection means the behavior is condoned or even acceptable. People sometimes try to put up with a situation for a while before taking action. The best way to prevent misunderstandings from occurring is to think before you speak. Under equal employment opportunity (EEO) laws, any discrimination based on race, color, religion, gender, age, or disability is prohibited: what one person may regard as playful or humorous, another may construe quite differently.

What are the legal requirements with regard to equal pay?

The Equal Pay Act of 1963 prohibits employers from paying different wages to men and women who perform essentially the same work under similar working conditions. However, that law has yet to be uniformly enforced; in many jobs—especially in the private sector—men continue to receive higher rates of compensation than women for the same work.

Where can I find more information on disability discrimination, to make sure that I comply with federal requirements?

If an employer fails to treat able-bodied and physically challenged employees equally, or does not make suitable arrangements to enable a physically challenged person to work effectively, he or she is answerable to the law. The U.S. Department of Justice's ADA (Americans with Disabilities) Web site is full of helpful and very specific information on how the Act operates and its overall aims and requirements.

What to DoKnow the Law

At least seven laws in the United States govern discrimination in hiring or employment practices.

  • Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, national origin, and sex.
  • The Equal Pay Act of 1963 prohibits employers from paying different wages to men and women who perform essentially the same work under similar working conditions.
  • The Civil Rights Act of 1991 extends protections established under the Civil Rights Act of 1964.
  • The Rehabilitation Act of 1973 is a precursor to the Americans with Disabilities Act.
  • The Americans with Disabilities Act of 1990 prohibits discrimination against persons with disabilities.
  • The Civil Service Reform Act of 1978 bars discrimination in hiring or employment practices of federal, state, and municipal governments.
  • The Age Discrimination in Employment Act (ADEA) of 1967 prohibits discrimination against people age 40 or above.

Depending on its size, your organization may be exempt from some discrimination laws. For example, the Age Discrimination in Employment Act only applies to organizations with "…twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year…"

Implement the Right Procedures

A discrimination-free workplace should have the following policies, processes, and procedures in place.

  • Policies and decision-making processes that are transparent so that misunderstandings do not occur when a decision apparently discriminates against someone on the basis of gender, sexual preference, race, age, or physical impairment.
  • Performance reviews that are undertaken regularly, in which goals set previously are appraised objectively. Employees should always know what their supervisors expect of them, and what level of success they have had in fulfilling these expectations. There should be no shocks or surprises in a performance review.
  • Training for anyone involved in the recruitment and selection processes, including supervisors and managers.
Educate Your Employees

Your responsibility as an employer is to make all your employees aware of discriminatory issues by making certain that all relevant information is available to them, that best practice is encouraged, and that diversity is valued. You should make clear to your senior managers that they must set the tone for this environment and that their actions must exemplify the culture you want. Publish your antidiscrimination policy prominently in the workplace and on your company intranet if you have one. Include a clear statement of it in all company literature, and use every opportunity you can to publicize it. Be sure the processes and procedures you have put in place encourage the fair treatment of everyone in the organization, and review these and your policy regularly.

Communicate

Keeping employer-employee communication channels open is the single most effective way of avoiding discriminatory behaviors in the workplace. People who know the rules and see that you are serious about enforcing them will be unlikely to risk the consequences of violating federal employment laws.

As an ethical employer you should go beyond the organization itself and let your customers know your policies on creating a non-prejudicial environment for your employees. Increasingly, stakeholders are making value choices about who they will do business with and who they will not.

What to AvoidYou Think the Laws Apply Only to Large Organizations

Employment law, for the most part, does not make exceptions for differences in the size of an organization, its circumstances, or the market conditions. It is a mistake for smaller businesses to ignore good employment practice with the excuse that they have neither the time nor the resources to support it. Given the amount of information available on the Web, this is not a valid reason for noncompliance. Researching your organization's legal position and obligations will be time well spent.

You Have No Clear Company Policies

Organizations sometimes overlook their responsibility for enforcing antidiscrimination laws until a case is brought against them. Ignorance is no protection from the law. You must make sure that you have policies and procedures in place and that everyone understands them.

You Do Not Force a Change in Culture

Professions that have been dominated by men now have to think about how to integrate women into their traditionally male workforces. Many high profile cases have been brought against these employing groups because they have not complied adequately with laws about gender bias. New entrants into male-dominated professions cannot be expected to acquiesce to these existing cultures. Organizations must be responsible for making sure that suitable practices are adopted to prevent any discriminatory activity from occurring.

Where to Learn MoreBook:

Covey, Anne. The Workplace Law Advisor: From Harassment and Discrimination Policies to Hiring and Firing Guidelines—What Every Manager and Employee Needs to Know. Cambridge, MA: Perseus Publishing, 2000.

Web Sites:

U.S. Department of Labor: www.dol.gov

U.S. Equal Employment Opportunity Commission: www.eeoc.gov