Does Discrimination in the workforce still exist?
The short answer is: yes. Many have hoped that by now, workplace discrimination would be a thing of the past but that is unfortunately not true. It may seem unthinkable to those who have never experienced it, but discrimination in the workplace is still an ongoing issue in every state and every industry. In nearly every case that has reached America’s court system, the employer was informed of the behavior and either did nothing to end it, or in some cases even led and participated in the abuse.
Lately, there has been a lot of attention point to age discrimination and the ADA when it comes to employers opening back up offices and bringing back furloughed workers during the current pandemic. How to handle and make allowances for workers who are more at risk for catching COVID-19 is a tricky HR situation that many companies are now just having to work through.
Also, there has been a rise in racial discrimination in the workplace considering the recent unrest that has permeated the nation. Surprisingly, these types of discrimination aren't even micro-aggressions or unconscious biases. At an Illinois fence installation company, a black employee was repeatedly subjected to racial slurs and comments and other offensive conduct, including the display of a noose. At a Minnesota mattress manufacturer, it was found by EEOC that employees were subjected to racial harassment in the form of displays of KKK hoods, nooses and verbal expressions of racial slurs and jokes. (EHS Today June 5, 2020).
Most workplace discrimination isn't quite so blatant, however. You might feel that you were discriminated against, but how can you tell if you have a valid case? There are several different factors you must consider when it comes to workplace discrimination. First, be aware of what workplace discrimination is legally defined as and how it is outlined by your company. Second, how exactly was it that you were discriminated against. Third, do you have or are you able to get evidence to prove your case in court.
The Federal Anti-discrimination laws that make it illegal for an employer to take adverse employment action against you only apply if you are a member of a protected class, or category of persons. Not all types of discrimination are protected under the federal laws, so you should make yourself aware of who is federally protected.
There are three main laws that protect these categories of people:
Title VII of the Civil Rights Act of 1964 (Title VII) makes it illegal to discriminate against someone on the basis of race, color, religion, national origin, or sex. Title VII also makes it illegal to discriminate against women because of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth.
The Age Discrimination in Employment Act (ADEA) makes it illegal to discriminate against someone because of age. This law protects people who are 40 or older.
The Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 make it illegal to discriminate against a person with a disability.
There are state and local laws that also make it illegal to discriminate against someone based on gender identity, immigration status, language, family responsibilities, sexual orientation, and/or genetic information. However, there is no Federal law broadly protecting these classes of people, so if you feel like you've been discriminated against based upon one of these identifiers, it is best to check with your local laws before proceeding.
Discrimination Types:
Discriminatory Intent/Treatment
A discriminatory intent, or discriminatory treatment claim is when an employee is treated worse by an employer because of his or her status as a member of protected class or category.
Disparate Impact
A disparate impact claim is a type of discrimination based on the effect of an employment policy, rule, or practice rather than the intent behind it. The anti-discrimination laws make it illegal for a seemingly neutral policy, rule, or practice to have a disproportionate adverse effect on members of a protected class. For example, a strength requirement might screen out disproportionate numbers of female applicants for a job or requiring all applicants to receive a certain score on a standardized test to be eligible for a promotion could adversely affect candidates of color.
Retaliation
A retaliation claim is when an employer retaliates against an employee who engages in conduct that the law protects, like making a complaint about discrimination, or reporting a safety hazard. See the Retaliation Page for more information about retaliation claims.
What to Do if You Have Been Discriminated Against:
The first thing to do would be to talk to an employment attorney. They can let you know what types of evidence you'll need to gather for your case. In every case, you will have to prove discrimination in a court of law. In general, there are two types of evidence that can be used to prove discrimination: direct and circumstantial.
Direct evidence is the best way to show that discrimination occurred. Direct evidence of discrimination can include statements by managers or supervisors that relate the adverse action taken against you to your protected class status. The best way to have this type of evidence is to obtain statements written in letters, memos, or notes. Or if an inappropriate or vulgar picture was left on your desk at work, keep the picture and provide it to your attorney. The use of a private investigator is also beneficial because they can take witness statements to help your case or even in some states, have conversations recorded. It is always best to talk to your attorney because state and local laws can determine what can and cannot be used in a court of law.
Circumstantial evidence points to discrimination through a series of inferences. The Seventh Circuit has laid out three categories of circumstantial evidence that can be used to prove discrimination:
1. Suspicious timing of the adverse action against the plaintiff; ambiguous statements by the employer; an employer's conduct toward other employees in the same protected group as the plaintiff; and "other bits and pieces" of evidence "from which an inference of discriminatory intent might be drawn";
2. Evidence that employees similarly situated to the plaintiff but are not members of the same protected group "received systematically better treatment"; and
3. Evidence that the plaintiff was qualified for a position, but was replaced by or passed over for the position in favor of someone not in the same protected group as the plaintiff and that the employer's stated reason for not choosing the plaintiff was pretextual.
Rudin v. Lincoln Land Cmty. College, 420 F.3d 712, 720-21 (7th Cir. 2005).
The likelihood of obtaining direct evidence of discrimination is extremely slim. Supervisors and other company personnel are generally well-trained by their own attorneys to suppress biases and prejudices in the workplace. In almost every case, an employee must rely on circumstantial evidence to create a presumption of discrimination although this can be exceedingly difficult to get. Collecting witness statements from co-workers by a licensed PI has been invaluable in providing this evidence and connecting these dots.
You do not have to allow discrimination to continue in your workplace. While it is difficult to understand how discrimination is still an issue in 2020, discrimination is difficult to prove, and difficult to fight. Having trusted professionals like a good employment attorney and a private investigator on your side makes the task that much easier and takes a lot of the stress of proof off your shoulders.
For more information on your rights as a member of a protected class, you can read this article from the American Bar Association.
**Update:
As of 6/15/2020 The Supreme Court ruled to include LGBTQ as a federally protected group.
For more information on this change, you can read this article.