What is employment discrimination?
Employment discrimination happens when an employee or job candidate is treated less favorably than other employees or candidates because of their race, religious beliefs, age, sexual orientation, gender, familial status (e.g., pregnancy, marital status, obligation as a parent or caregiver) or disability.
There are generally two main types of discrimination at work. Direct discrimination excludes people with particular attributes, such as race, gender or sexual orientation. Indirect discrimination adds requirements that some people can’t meet, such as requiring someone with children to frequently work overtime or on weekends.
Employment discrimination is typically illegal in almost every aspect of employment, including hiring (e.g., job descriptions, interviews, screening), promotions and bonuses, firing and layoffs, compensation, training, benefits and work assignments. There are also often provisions in employment discrimination laws that protect employees from workplace harassment based on factors like race, gender and age.
Specific examples of employment discrimination laws
The Equal Employment Opportunity Commission (EEOC) is a federal agency that enforces employment-related anti-discrimination laws. Here are some examples of federal laws that the EEOC enforces in the US to protect employees from discrimination during the hiring process and/or in the workplace:
- The Equal Pay Act of 1963 (EPA) protects people who perform equal work from sex-based wage discrimination.
- Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, religion, sex or national origin. This law applies to businesses with 15 or more employees. Read more here.
- The Age Discrimination in Employment Act (ADEA) of 1967 protects people over 40 from age-based employment discrimination. ADEA applies to businesses with 20 or more employees. Read more about this law here.
- The 1973 Rehabilitation Act bans discrimination against people with disabilities who work for the federal government.
- The Pregnancy Discrimination Act of 1978 banned discriminating against a person because of pregnancy, childbirth or a related medical condition (e.g., gestational diabetes, preeclampsia). This means employers can’t refuse to hire a qualified candidate just because they’re pregnant. Read more about this law here.
- Title I and Title V of the 1990 Americans with Disabilities Act (ADA) keeps businesses with 15 or more employees from discriminating against people with disabilities.
- The Civil Rights Act of 1991 provides monetary damages for people whose employers practiced intentional discrimination, including emotional distress damages. Employees can also select a trial by jury rather than by judge alone.
- The 2009 Lilly Ledbetter Fair Pay Act amended the Civil Rights Act of 1964, and it stated that the 180-day statute of limitations for a pay discrimination lawsuit starts over with each discriminatory paycheck.
Another important regulation is the bona fide occupational qualification (BFOQ), which is a part of the Civil Rights Act of 1964 and the ADEA of 1967. This qualification states that employers may take certain factors into consideration if they’re necessary to perform the job. For example, a religious college could require its professors and other staff to follow the same religion.
Three things to avoid
Here are a three things you shouldn’t do when it comes to employee discrimination.
1. Don’t engage in discriminatory hiring practices
Avoid intentionally (or unintentionally) discriminating against candidates in your job descriptions, interview questions and when making final hiring decisions. Using certain language in your job postings may be excluding certain types of people. For example, the words “fresh,” “energetic,” and “digital native,” may discourage older candidates from applying. There are also certain words and phrases that may exclude women, people with disabilities and other types of people.
During interviews, it’s a smart move to avoid asking questions that touch on the areas of race, religion, familial status, sexual orientation or other similar topics. For instance, asking questions like “When do you expect to retire?” and “Do you plan on having children?” may be considered discriminatory.
Finally, avoid taking into account protected classes when making a final hiring decision. For example, when choosing between two equally qualified people — one who is pregnant and one who is not — hiring the candidate who isn’t pregnant just because you think it’ll be easier for your business may be considered employee discrimination.
2. Don’t tolerate discrimination in your workplace
It’s important to make sure bonuses, promotions and raises are related to performance, not sex, race, age, disability or religion. Audit your bonus, promotion and pay raise statistics across your business to identify patterns and gaps. Additionally, make sure your employee evaluation process is standardized and consider increasing transparency around requirements for bonuses, promotions and raises.
Playful teasing, name-calling and blatant harassment should also not be tolerated in your workplace. Consider communicating your code of conduct and other company policies on discrimination and anti-harassment, or create a diversity training program to prevent discrimination in your workplace.
Additionally, team-building activities and company outings should include everyone. For example, rock climbing and kayaking may exclude older workers, people with disabilities and pregnant women. Instead, choose activities that everyone can participate in, such as group puzzle challenges or trivia games.
3. Don’t pay women less than men for the same work
Under the Equal Pay Act of 1963 (EPA), employers are not allowed to pay women less than men for the same work — unless pay differences are based on seniority, merit or quality of work. You should also provide equal opportunities for both men and women to achieve leadership positions. Here are some other things to look out for when it comes to gender inequality in the workplace.
How to prevent employment discrimination
Below are some other ways to prevent discrimination at your business:
To prevent employment discrimination, it’s important to stay informed on different federal and state laws regarding workplace and recruiting discrimination. Since there are many anti-discrimination hiring regulations (and new laws can change things quickly), it’s important that you know all of them when you write job postings and interview candidates. The EEOC website is a great resource to help you stay updated on the latest changes.
Many HR professionals have extensive knowledge of discrimination laws, so it could be helpful to meet with your HR team regularly. They should be able to provide guidance if you need to create a workplace policy, or you can get them involved in the recruiting process to keep it as inclusive as possible.
Teach employees and managers about employment discrimination laws
Make sure that all of your employees and managers know the definition of employment discrimination and the various discrimination laws. Some states may have additional anti-discrimination laws, so you should make sure that you follow all of the regulations in your area.
Additionally, you may want to cover your workplace’s discrimination policies as part of onboarding new employees. It can also be helpful to hold training sessions or meetings if you need to inform employees of any updates or changes. A company-wide email can be sufficient in many situations. You can have employees respond to the email as a way to show they read it, for example.
Create and enforce an anti-discrimination policy for your workplace
In collaboration with your HR and legal team, consider creating a written anti-discrimination policy that managers and employees can consult when needed, and train managers to handle discrimination complaints quickly and confidentially. You should enforce this policy consistently and update it regularly to keep up with any changes in anti-discrimination laws.
Consider making the policy available in the employee handbook so anyone can refer to it at any time. If you want to make sure employees understand your workplace’s discrimination policies, you can ask them to sign their handbook as a signal that they read and understood the terms.
Employment discrimination FAQs
Which states have LGBT discrimination laws?
All states now have LGBTQ discrimination laws, according to a new Supreme Court ruling. In Bostock v. Clayton County, Georgia, 590 U.S. ___ (2020), the Supreme Court ruled that employment discrimination based on sexual orientation or transgender status is illegal under Title VII of the Civil Rights Act of 1964.
Before the Bostock decision in 2020, only 21 states offered full protection from discrimination based on sexual orientation.
Do employment discrimination laws cover tattoos?
Employers are generally allowed to create dress code policies that prohibit tattoos in the workplace without violating any anti-discrimination laws. However, there are a few exceptions. Under Title VII, for example, employers can’t discriminate against an employee if a tattoo is part of their sincerely held religious beliefs.
What are discrimination laws like in other countries?
Many companies have international branches or use contractors in other countries, so company leaders should be familiar with discrimination laws in those places as well. The discrimination laws in the United Kingdom are similar to the laws in the United States.Regulations in the European Union, New Zealand and Canada are similar, and Australia also protects intersex people who have male and female characteristics.