Discrimination in the Workplace
In theory, employers understand the concept of treating all employees equally and consistently when it comes to the hiring, firing, and discipline of employees. Some employers, often those with 50 or more employees who also have federal government contracts, are required to implement affirmative action programs in order to demonstrate that they are not engaging in any discriminatory employment practices. Most employers know, in theory, that they should treat employees fairly and not favor any particular group of workers to the detriment of the workforce. However, many employers, without any sort of malicious or wrongful intention, engage in business practices that have the unintended result of being discriminatory. Are you one of them?
Before discussing inadvertent discriminatory policies in the workplace, it is important to understand how discrimination is defined in the practice of employment law and human resources. It is illegal to discriminate against an employee based on their membership in a “protected class,” but what exactly is a protected class? Under Title VII of the Civil Rights Act of 1964, discrimination on the basis of race, color, national origin, sex, and religion is prohibited in the workplace. The Americans with Disabilities Act of 1990 offers additional protections to employees with disabilities and, in certain circumstances, compels employers to offer reasonable accommodations to employees who are considered to be “disabled” as a matter of law. The Age Discrimination in Employment Act of 1967 prohibits discrimination on the basis of age, offering protection to employees over the age of 40. The Uniformed Services Employment and Reemployment Rights Act prohibits discrimination based on current or past military membership, as well as requiring employers to return employees to their civilian jobs after military service. These are all United States federal laws. States often have additional employment law statutes that prohibit certain discriminatory practices. For example, Michigan’s Elliott-Larsen Civil Rights Act of 1976 affords similar protection from discrimination in the workplace as those factors listed in Title VII, but includes additional protections on the basis of age, height, weight, and familial/marital status.
Given all of the types of protected classes described above, in what circumstances could employers have unintentional discriminatory practices in place? One such practice occurs when employers perform background checks as part of their hiring process. Employers with a blanket policy that states that they will not hire applicants with an arrest record, misdemeanor, or even felony charges may be inadvertently disadvantaging certain protected classes from the job. This is because statistics show that certain protected groups are arrested at higher rates, and using a factor such as an arrest record to make employment decisions when that factor is not really related to the job itself can disadvantage groups of people in an unfair and possibly illegal way. It is much safer for employers to consider the following before making the hiring decision: whether the incident on the applicant’s record pertains to the job they will be doing, how long ago the incident occurred, and whether the applicant repeated the offense.
Another example of unintentional discriminatory employment practice is the bias associated with physically demanding jobs such as construction, demolition, maintenance, installation, and other types of manual labor. While an employer in this kind of industry may not harbor discriminatory feelings, it may appear otherwise if their workplace is comprised of only one group of people. For example, employers who consistently hire men for physical positions may give the outward impression that they don’t hire women because they believe them to not be as physically capable in the role. To make sure that their hiring decisions are not perceived as discriminatory, employers should be cognizant of the kinds of questions they ask during their interview process, create job descriptions that identify the essential duties of the position, and consider having all new hires take physical tests to determine if they can fulfill the physical requirements of the job. The hiring decision should never simply be based on an individual’s sex, or any other protected characteristic. Anyone responsible for making hiring decisions should be aware of the possibility of latent biases that could impact how they assess applicants and adjust their decision making accordingly.
These are just examples of practices that could be perceived as discriminatory in nature, but there are also situations where employers appear to be engaged in a discriminatory practice when the practice is actually used for a genuine, non-discriminatory reason. As long as the employer can substantiate the reason for engaging in the practice and make clear that there is no intentional or unintentional discrimination against any protected class, then the practice may not necessarily violate any federal or state discrimination law.
The environment surrounding discrimination in the workplace is constantly changing. In fact, the Supreme Court recently decided a case that asks whether Title VII, which prohibits discrimination on the basis of sex, should be considered to prohibit discrimination on the basis of sexual orientation (as it may be considered a form of sex discrimination.) This decision impacts employers and employees across the country.
Sexual orientation is not the only type of discrimination that is likely to change in the next few years. As a client of UAP, you can trust us to stay aware of all changes in employment law, including discrimination, and keep you updated so that you can ensure your business always stays in compliance.
